E.E.O.C. v. Original Honeybaked Ham Co. of Georgia, Inc., No. 11-cv-02560-MSK-MEH, 2012 WL 5430974 (D. Colo. Nov. 7, 2012)
In this case involving allegations of sexual harassment, a hostile environment and retaliation, the court granted in part Defendant’s Motion to Compel and ordered broad discovery of class members’ social media, text messages and email.
The EEOC brought claims alleging that Defendant subjected a class of female employees (between 20 and 22 persons) to sexual harassment and retaliation. Accordingly, Defendant sought discovery of “numerous categories of documents” related to the class members’ emotional and financial damages as well as credibility and bias. Among the discovery sought were the contents of the class members’ social media accounts and text messages. Before ruling, the court indicated that many class members had utilized “electronic media to communicate” about potentially relevant topics and explained that it viewed such content “logically as though each class member had a file folder entitled ‘Everything About Me,’ which they have voluntarily shared with others” and that if there were relevant documents or information that could lead to the discovery of admissible evidence within this folder, “the presumption is that it should be produced.” The court further reasoned that “[t]he fact that it exists in cyberspace on an electronic device is a logistical and, perhaps, financial problem, but not a circumstance that removes the information from accessibility by a party opponent in litigation.”
“To set the playing field” before turning to further analysis, the court noted that the “cumulative exposure” of the Defendant was in the “low-to-mid seven-figure range”—a fact that was “important to note when addressing whether the potential cost of producing the discovery is commensurate with the dollar amount at issue.”
The court concluded that there was “no question” that Defendant had established that “the documents it seeks contain discoverable information.” For example, Defendant established that the plaintiff-intervenor had posted statements to her Facebook account on a myriad of potentially relevant issues, including her financial expectations in this lawsuit, her emotional state, her post-termination employment and income opportunities and many more. The court reasoned:
If all of this information was contained on pages filed in the “Everything About Me” folder, it would need to be produced. Should the outcome be different because it is on one's Facebook account? There is a strong argument that storing such information on Facebook and making it accessible to others presents an even stronger case for production, at least as it concerns any privacy objection. It was the claimants (or at least some of them) who, by their own volition, created relevant communications and shared them with others.
Turning briefly to text messages, the court recognized the validity of the EEOC’s objection “concerning the vagueness of the Defendant’s discovery requests, especially insofar as they allegedly seek text messages,” but found that Defendant’s definition of “document” in its requests was “sufficient to cover text messages.”
The court continued its analysis:
Given the fact that Defendant has already obtained one affected former employee's Facebook pages, and that those pages contain a significant variety of relevant information, and further, that other employees posted relevant comments on this Facebook account, I agree that each class member's social media content should be produced, albeit in camera in the first instance. I do not believe this is the proverbial fishing expedition; these waters have already been tested, and they show that further effort will likely be fruitful.
Recognizing the privacy issues in play and indicating that it was “not sold” on the relevance of all requested categories, the court indicated its intent to utilize a forensic expert as a special master to address those concerns.
Accordingly, the court ordered that the plaintiff-intervenor and the class members shall produce to the special master:
1. Any cell phone used to send or receive text messages from January 1, 2009 to the present;
2. All necessary information to access any social media websites used by such person for the time period January 1, 2009 to present;
3. All necessary information to access any email account or web blog or similar/related electronically accessed internet or remote location used for communicating with others or posting communications or pictures, during the time period January 1, 2009 to present.
To accomplish this, the parties were ordered to collaborate on 1) a questionnaire to be answered by the class members intended to identify all such relevant repositories of ESI, and 2) instructions for the special master regarding the parameters of the information he would collect.
The information collected would be provided in hard copy to the court for its review to identify legally relevant information, which would then be provided to the EEOC for review before production. The court further indicated that although it had considered requiring Defendant to bear the cost, it believed that such an order would not be “consistent with the Federal Rules of Civil Procedure” and thus ordered the parties to split the costs. The court then went on to address other categories of information at issue in Defendant’s motion.