• March 25, 2014

Update (March 25, 2014): The adversaries in the “Facebook case,” described below, have hammered out a treaty (linked here).  This might be a useful reference for other schools or institutions as they seek to control this new frontier of expression (and, sometimes, abuse).

ContortionistOriginal Post (October 2, 2013): (Under the subject line, School, Students, Facebook and More Civil Litigation Contortions): The litigation regarding school officials having compelled a student to share her Facebook password and, thus, her Facebook posts with school officials, previously covered here, continues. It appears to be a hard-fought and prolonged battle. This week U.S. District Court Mag. Judge Leo I. Brisbois (D. Minn.) dealt with defendants’ motions to compel.  For the most part, he stiffed the defendants’ requests for addititional discovery but not entirely.

Due to school officials’ intrusion into the seclusion of the student’s Facebook account (irony intended), the student alleges she was crying, depressed, angry, scared, and embarrassed.  She was allegedly so upset and scared that she refused to go to school for two days.

So it might surprise you to read that, “Plaintiff is ‘not seeking damages for mental distress.'”  She merely seeks damages for humiliation, embarrassment, and for the invasion of privacy.  Not mental distress.

Got that? Clear as mud.


What this brainteaser is about (“I am seeking damages for ‘humiliation’ but not ‘mental distress'”) is that Plaintiff wants to seek damages from a jury but she does not want to have to produce any evidence aside from her own undoubtedly heart-felt testimony. She does not wish to open up her medical records.  She does not want to offer any expert testimony.  She does not wish to bare her soul.  She does not wish to answer any discovery, really, as to her mental health, about other things that might have caused anxiety, embarrassment, sadness etc.

The Court refers to “garden variety” claims of emotional distress seven times in the opinion.  What’s that? The language would seem to come from this earlier 2006 decision in which a different Magistrate Judge (D. Minn.) determined that the plaintiff’s claims went beyond “the mere allegation of ‘garden variety’ emotional distress” to “unusually severe emotional distress” and thus there was “good cause…shown for a mental examination.”

Yet again, no one asked me (go figure).  But, in my view, if you are asking a Court or a jury to award you money for an injury, no matter how slight, the fact that you have asked the Court to award you money for that injury should be sufficient for your adversary to seek examination and evidence with regard to that injury whether it is mental, physical, or in some metaphorical garden.

If the damages are so slight — that is, if they are so-called “nominal damages” —  so a plaintiff feels it is unfair and intrusive to share medical records and subject herself to an IME (independent medical examination) to test their validity maybe they are so nominal that they should be non-compensable.

For clarity and for what it is worth (maybe nothing), I believe that being made to cry, being made to feel depressed, being made angry, being scared, or being embarrassed might well form bases of compensable damages in certain circumstances.  It is only that it seems to me that the other side should be entitled to discovery whenever plaintiffs are seeking such damages for the conditions alleged to have caused them.

A final note for civil discovery jocks: plaintiff’s counsel objected in deposition based on “relevance” and also coached a witness while on a break while a question was pending.  (See p. 19 and following.)  Many civil litigators regard such conduct as misconduct.  The gamble paid off in this case, however.  The magistrate judge denied any relief based on plaintiff’s counsel’s actions.

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