Courts have struggled to strike the proper balance between discoverable information and the invasions of privacy rights of plaintiffs with social media accounts. While the general rule of thumb is for defendants to make a threshold showing of relevancy before private information is ordered produced, a federal court in Colorado recently ordered all social media accounts and text messages to be fair game in EEOC v. The Original Honeybaked Ham Company of Georgia, Inc. (2012 WL 5430974)(D.Colo. Nov. 7, 2012). In that case, the plaintiff EEOC represented a class of women asserting claims of sexual harassment, hostile environment and retaliation against defendant-employer Honeybaked Ham.
The Court compared a social media account to a fictional “Everything About Me” folder to inquire as to what documentation in the folder would be relevant. The fact that this “imaginary” folder is posted online to various third parties only bolstered the case for production. The Court looked at one affected employee’s Facebook page which contained a significant amount of information relevant to the lawsuit.
The Court appointed a forensic expert as “Special Master,” to gather the electronically stored information to present to the court for in camera review. The Court then determined the relevant electronic data discovery and issued a Protective Order for all information after offering plaintiffs a chance to object on grounds of relevance.
The judge ordered plaintiff ESI production to include:
1. All cell phone data used for text messages from 1/1/09 to present;
2. Necessary information (usernames and passwords) of social media websites used by any class member from 1/1/09 to present; and
3. Necessary information to gain access to email accounts, blogs or any internet communication with others from 1/1/09 to present.
While the Court attempted to mitigate the plaintiffs’ privacy concerns by the use of a third-party forensics expert and in camera reviews, this remains an incredibly sweeping order with regards to social media and email accounts, and one in which plaintiffs should be mindful of in future cases where a plaintiff’s state of mind might be an issue.
For more information, contact us directly at 888-313-4457 to learn about how our plaintiff ESI production services can assist with reducing discovery burdens, saving our clients time and money.