Posted Nov 20, 2012 09:27 pm CST
Saying that the plaintiffs in an employment discrimination case have not produced all material relevant to the defendant employer’s somewhat unclear discovery requests, a federal magistrate judge has ordered them to provide their cellphones and passwords to Facebook and other social media accounts.
A special master will compile their text messages and posts on Facebook and other pages, then determine what is and is not relevant. The plaintiffs will also have a chance to object before the material is produced, explains Judge Michael E. Hegarty in a Nov. 7 order (PDF) in the District of Colorado case.
He partially granted a motion to compel after the defendant, The Original HoneyBaked Ham Co. of Georgia Inc., got hold of material from lead plaintiff Wendy Cabrera’s Facebook page. It contained her thoughts about how much money she might get from the lawsuit, as well as her emotional state after losing a pet and ending a relationship and other information relevant to the damages she is seeking, the judge says.
“As a general matter, I view this content logically as though each class member had a file folder titled ‘Everything About Me,’ which they have voluntarily shared with others,” Hegarty explains. “If there are documents in this folder that contain information that is relevant or may lead to the discovery of admissible evidence relating to this lawsuit, the presumption is that it should be produced. The 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.”
The plaintiffs and the defendants will share the cost of the discovery, the judge said.
Observers are questioning whether the ruling is overly broad. Writing at Technology & Marketing Law Blog, attorney Venkat Balasubramani points out that providing passwords gives a third party carte blanche to access the entire account and perhaps unwittingly make changes to it. He argues that the plaintiffs should simply be required to export the information sought by the court.
“It’s also worth mentioning that online conversations among class members should be avoided,” he notes. “They take place prior to when lawyers are involved, but these conversations are sure to contain some juicy bits that are useful to defendant.”
The suit, which was filed last year by the Equal Employment Opportunity Commission, seeks damages on behalf of approximately 20 women who allege they were sexually harassed at the defendant’s stores in Colorado and suffered retaliatory treatment, including being fired, when they complained up the chain of command.
An Associated Press article reports that the HoneyBaked Ham Co. said it doesn’t tolerate harassment and investigated Cabrera’s complaints when they arose the previous year.