A federal magistrate judge recently penalized the Equal Employment Opportunity Commission (EEOC) for stymieing an employer’s attempts to secure through discovery an employee’s social media and other electronic communications related to her sexual harassment claims. (Discovery is the pretrial exchange of evidence relevant to the case.) The court’s order sends a warning to litigants who might be inclined to treat social media discovery less seriously than other forms of discovery and highlights the necessity of having a feasible e-discovery plan.
Background
The EEOC filed a class action suit against The Original HoneyBaked Ham Company of Georgia, Inc., alleging sexual harassment and hostile work environment involving 20 to 22 female employees. In the course of discovery, the parties agreed to a certain methodology for the exchange of electronic information, including the use of a questionnaire intended to identify the social media that would be forensically examined.
The EEOC agreed to conduct in-house forensic discovery of the employees’ social media (which the court identified as “cell phones for texting, web sites for blogging, [and] computers for e-mailing” ). However, according to the magistrate judge’s discovery order, after the EEOC’s trial attorneys were apparently countermanded by the agency’s “powers that be” from completing their discovery obligations in the agreed-upon manner, proceedings were delayed, and the employer incurred additional and unnecessary expenses.
While the magistrate judge didn’t find that the EEOC’s “inappropriate and obstreperous” behavior rose to the level of bad faith, he held that the conduct was nonetheless punishable under the court’s inherent power to manage its docket and avoid unnecessary expenses for the court system and the parties that use it. EEOC v. The Original HoneyBaked Ham Company of Georgia, No. 11-cv-02560 (D. Colo., Feb. 27, 2013).
Know your social media
The EEOC is no stranger to the use of social media evidence in administrative and court proceedings. Over the past few years, the agency has been making headlines by prosecuting cases in which employees have been fired for engaging in what it has termed “concerted activity” under the National Labor Relations Act (NLRA) on social media websites such as Facebook. Those circumstances imbue the order in the HoneyBaked Ham case with a sense of irony but also underscore the premise that the courts expect litigants and their attorneys to be familiar with social media and the resources for obtaining forensic evidence of social media use. As the magistrate judge emphasized in his order, the federal courts are able to penalize attorneys, clients, or both, depending on where the fault for discovery abuse lies.
The order reflects a few generally applicable points about electronic discovery as it relates to social media:
- The discovery of social media is often voluminous and frequently involves forensic examination of more than one device. It’s not uncommon for an individual to access social media accounts and produce discoverable material using a cell phone or smartphone, laptop, desktop, and tablet. Examining each device can be time-consuming and expensive, two factors that should be weighed against the value of the evidence that may be obtained.
- Litigation is expensive, and everyone is looking to minimize costs. However, there are times when it’s appropriate to engage an expert. Forensic examination of electronic data may be one of those times unless your company has extensive in-house expertise and your IT people have time to devote to the task in addition to performing their regular duties. A court is likely to have little patience for preventable delays.
- Social media isn’t protected by any general privilege but is discoverable to the same degree as any other media. In particular, the attorney-client privilege doesn’t extend to communications with third parties. Tweeting is tantamount to shouting in the town square, and posting on Facebook is like writing to the newspaper, no matter what level your privacy settings. Anyone involved in litigation should use social media judiciously, if at all, and think carefully before posting.
Bottom line
Social media evidence can be important to either prove or defend a case, and you should carefully weigh the cost of completing a forensic investigation of electronic devices before entering into an agreement involving the discovery of such information. Be careful if you offer your in-house technology department’s services for forensic examination of electronic devices; e-discovery can be more time-consuming than anticipated and may need to be completed within deadlines set by a court.
Failure to complete timely electronic discovery could leave you responsible for your opponent’s legal bills or further sanctions, depending on the level of misconduct. Judges expect litigants and their attorneys to be familiar with social media and the logistics of electronic discovery and are less likely to be lenient moving forward.
Kate DeForest is an associate with Sulloway & Hollis, PLLC, and contributor to New Hampshire Employment Law Letter. She works on a broad range of litigation and transactional matters, with a focus on labor and employment, business litigation, and health care issues. She may be contacted at kdeforest@sulloway.com.