Defamation, Emotional Distress, Racism/Sexism Allegations, and Discovery

"[Defendant ex-employer's] request for all of [plaintiff's] communications containing language that is sexist or racist is overbroad."

First, some backstory, from a decision in March by Judge Jessica Clarke (S.D.N.Y.) in eShares, Inc. v. Talton allowing Talton to proceed on his defamation claim:

According to Talton, in December 2022, he was terminated by Carta [also called eShares] and [Carta's CEO] Ward for opposing Carta and Ward's discrimination toward women …. One week after Talton's termination, Carta initiated a lawsuit against Talton for, among other things, breach of fiduciary duty and misappropriation of trade secrets. Several months after Talton's termination, Ward published and circulated an article on Medium casting Talton as "inappropriate toward women" and a "misogynist and racist." …

Talton specifies several statements made in Ward's Medium Article that could constitute defamation per se. The article states that Talton "was inappropriate with women and abused his position as CTO" and that Talton was "a misogynist and racist." In the context of an article about employee impact on company performance, these qualify as "words that impute a person … lacks integrity in performing … his employment duties" and as "words that … prejudices [a] person in … his profession." Moreover, Talton has alleged the defamatory effect of these statements included lowering his professional standing and extending his period of unemployment….

Carta and Ward also argue that these statements are constitutionally protected opinions. But this is also unavailing. As discussed above, Illinois law categorizes such statements about Talton's lack of integrity at work and statements prejudicing him in employment to be defamation per se….

In a decision Monday, Judge Clarke limited Carta's discovery of Talton's past communications:

Carta's request for all of Talton's communications containing language that is sexist or racist is overbroad…. [T]he basis for Talton's defamation claim regarding the Medium Post is that the Medium Post disparaged Talton as unemployable due in part to his racist and sexist behavior—not that Talton was simply racist and sexist… In a defamation defense asserting substantial truth, Carta must assert that Talton was racist and sexist in such a way as to make him unemployable. And Carta cannot show that Talton's alleged exchange of racist and sexist messages—if any—made him unemployable if his employer did not even know of that conduct when firing him….

The March decision, by the way, also allowed Talton to proceed on his intentional infliction of emotional distress claim:

Illinois law requires three elements to state an IIED claim. First, the conduct involved must be extreme and outrageous, such that it goes "beyond all bounds of decency and be considered intolerable in a civilized community." Second, "the actor must have intended for their conduct to inflict severe emotional distress, or must have known there was at least a high probability their conduct would cause severe emotional distress." Finally, the conduct must in fact cause severe emotional distress.

"Under Illinois law, defamatory statements, if sufficiently extreme and outrageous, can support an IIED claim." If a defamatory statement is sufficiently extreme and outrageous, a court need not dismiss the IIED claim for duplicativeness….

Non-defamatory acts can also form the basis of an IIED complaint. That is because "[u]nlike a defamation claim, a claim of intentional infliction of emotional distress does not include falsity as an element."  For this reason, even statements that cast depictions of truth can give rise to an IIED claim—such as broadcasting or publicizing the private details of a plaintiff's life, or deeply personal moments of intimacy or trauma. "If anything, sometimes depicting the truth can be more harmful and more extreme than giving a falsehood, because it deprives the victim of the satisfaction of a denial."

Talton's allegations meet the "extreme and outrageous" bar of an IIED claim. First, Talton has alleged that the Medium Article's defamatory statements were an abuse of power, widely casting Talton as an unemployable individual to the entire pool of his prospective employers.  To be sure, when Illinois courts have found defamatory statements alone to support an IIED claim, the statements themselves are usually of a more extreme nature. See Goldstein v. Kinney Shoe Corp. (N.D. Ill. 1996) (finding defamatory statements that plaintiff had engaged in "criminal sexual conduct" sufficient to support an IIED claim); Dawson v. New York Life Ins. Co., (N.D. Ill. 1996) (finding defamatory statements that depicted plaintiff as engaging in forgery and fraud sufficient to support an IIED claim).

However, Talton has alleged that he suffered more harm than just the publication of the defamation statements: the circulation of the Medium Article, with its link to the Complaint and private texts contained therein, also exposed Talton's private life to more widespread scrutiny than the uncirculated filing of the original Complaint. Again, the filing of the Complaint cannot form the basis for the IIED claim. However, the act of contextualizing and circulating that Complaint via the Medium Article does contribute to whether the publication and circulation of the Medium Article forms an IIED claim.

Taking all facts together, the Court finds that Talton narrowly alleges "extreme and outrageous" conduct based on the publication and circulation of the Medium Article. Though there remains a question about whether this is sufficiently extreme conduct for an IIED claim to succeed, "this sort of detailed fact-parsing and distinguishing of factual records is not properly done in this case under a Rule 12(b)(6) analysis." …