section_social_media_marketing.pngBy Christopher DeGroff and Gerald L. Maatman, Jr.

Social media has become an integral part of modern society. Legal issues involving social media and discovery are complex, and evolving. On social media websites, people share information and pictures with friends, family, and even the unknown. Often, employees will communicate with other co-workers on an online forum and discuss their jobs. In EEOC v. The Original Honeybaked Ham Co. of Georgia, Inc., No. 11-CV-02560 (D. Colo. Nov. 7, 2012), a systemic sexual harassment and retaliation case, the Defendant argued that many of its employees utilized social media to communicate and therefore claimed that the employees’ online statements were discoverable. The EEOC categorized the Defendant’s demands as a “proverbial fishing expedition” and claimed that its discovery requests were too vague. Id. at 4. Siding with the Defendant, Judge Michael E. Hegarty ruled that the employees’ social media content should be produced because it was “perfectly relevant” to the EEOC’s sexual harassment allegations. Id. at 4. In an important caveat, however, Judge Hegarty set up a creative screening process – requiring a special master to examine the EEOC’s production in camera, to ensure that the Judge Hegarty only reviews discoverable information. 

Background Of The Case

In 2010, the EEOC investigated allegations that the Defendant’s regional manager subjected Wendy Cabrera, and other female employees to repeat and offensive sexual comments and physical touching. One year later, the EEOC initiated claims of sexual harassment, hostile environment, and retaliation, alleging that the Defendant subjected approximately 20 women employees to sexual harassment. Id. at 1. One of the charging parties, Cabrera, claimed that her supervisor solicited sex from her and other women employees. Cabrera also claimed that after she reported the harassment, the Defendant terminated in her in retaliation. The EEOC demanded the Defendant provide back pay and compensatory and punitive damages to the allegedly aggrieved individuals. The EEOC also requested that the Court require the Defendant to initiate anti-discrimination training for its managers and human resource personnel.

In efforts to build its defense, the Defendant requested discovery of the employees’ social media accounts, text messages, and emails. The Defendant argued that such information was relevant to the lawsuit because, for example, Cabrera posted on her Facebook page her hopes to recover $400,000 from the lawsuit; statements about several personal matters; “musings about her emotional state in having lost a beloved pet as well as having suffered a broken relationship; other writings addressing her positive outlook on how her life was post-termination; her self-described sexual aggressiveness; statements about actions she engaged in as a supervisor with Defendant; sexually amorous communications with other class members; [and,] her post-termination employment and income opportunities and financial condition[.]” Id. at 3-4. In objecting to the Defendant’s discovery request, the EEOC asserted that the Defendant’s request was overly broad and intruded on the employees’ privacy.

The Court’s Ruling

The Court ruled on the parties’ discovery dispute and held that the information the employees posted on their Facebook profiles is relevant to the lawsuit and therefore discoverable. Noting that social media presents “thorny and novel issues,” the Court reasoned that the employees’ Facebook postings are discoverable because they may contain information that could lead to discovery of admissible evidence relating to the lawsuit. Id. at 2.

The Court rejected the EEOC’s privacy objections and noted that the employees shared information in a public forum, knowing that it was accessible by other people. Nevertheless, the Court did not disregard the EEOC’s privacy concerns. Instead, the Court selected a forensic expert as a special master to review the requested documents – a process it defined as necessary to “gather only discoverable information.” Id. at 4-5. Following the special master’s review of the social media content and determination of what information is relevant, Judge Hegarty will conduct an in camera review. After Judge Hegarty’s review, he will require the EEOC to produce documents that he finds relevant to the lawsuit. Id. at 5-6. At that point, the EEOC will have an opportunity to conduct a privilege review, and then provide the non-privileged material to the defense counsel along with a privilege log containing any withheld information. Id. at 6.

Implications For Employers

This ruling sheds light on the emerging issue of how to deal with discovery of employees’ social media content. Judge Hegarty tested the waters and implemented a system that appears to be relatively low-cost and efficient. Most importantly, using a special master as a “screener” satisfies the EEOC’s presumed concerns that the employees’ social media content could create a bias in favor of the employer. The ruling in EEOC v. The Original Honeybaked Ham Co. foreshadows discovery battles that relate to social media ― so stay tuned.

Readers can also find this post on our EEOC Countdown blog here.