When the plaintiff in Caputo v. Topper Realty Corp. filed suit under the Fair Labor Standards Act and New York Labor Law, the defendants responded with discovery requests for cell phone records, Facebook account information and more. The court

found these requests to be far too broad and narrowed it to sampling to determine relevancy, with the option to renew the request upon discovering probative evidence.

The plaintiff, Doreen Caputo, alleged that from February 2004 to November 2013, she worked eight-hour days, six days a week for the realty company in New York, without lunch or compensation for additional hours worked. In order to disprove the allegation, the defendants sought to show the plaintiff had other employment during the relevant time period, her whereabouts during that time, that she engaged in non-work-related phone calls while employed and that her claims of mental anguish could be contradicted.

The court denied the motion to compel the production of the tax returns and denied, in part, the production of credit and debit card statements.

With regard to the cell phone records, the court cited Ritz v. Directory Publishing Solutions, Inc. as having a measured approach that was “well-suited to balance Defendant’s entitlement to relevant information against Plaintiff’s concerns over the possibility of a ‘fishing expedition.’” The court permitted a sampling of the cell phone records with the option to renew the application if any probative evidence was discovered.

Finding the request for the Facebook account information (wall posts, status updates, pictures, messages, communications and any other content displayed) as “too broad to withstand scrutiny” and that the defendants “have offered little more than simply their ‘hope that there might [have] be[en] something of relevance” on the plaintiff’s Facebook page over the period. The court cited Giacchetto v. Patchogue-Medford Union Free School District and declined to allow the defendants to have complete access to the plaintiff’s Facebook account in order to find content that “may appear inconsistent with someone experiencing emotional distress.” Instead, the court allowed sampling of the Facebook account for a certain period and “limited to any “specific references to the emotional distress [Plaintiff] claims she suffered” in the Complaint, and any ‘treatment she received in connection [there]with.’”