EQUAL EMPLOYMENT OPPORTUNITY COMMISSION SANCTIONED BY COURT FOR FAILING TO PRODUCE SOCIAL MEDIA EVIDENCE

In EEOC v. Original Honey Baked Ham Company of Georgia, Inc., which is presently being heard in federal court in Colorado, the Equal Employment Opportunity Commission (EEOC) commenced a lawsuit on behalf of a class of current and former employees asserting sexual harassment and retaliation.  During discovery, the employer requested the class members’ social media content and text messages, including usernames and passwords for the class members’ social media accounts, usernames and passwords for e-mail accounts and blogs, and cell phones used to send or receive text messages.  This request was made by the employer in order to examine the class members’ emotional and financial damages, as well as the class members’ credibility.

The EEOC objected to the production of the requested information/documentation, and the dispute was submitted to the court.  In a November. 2012 decision, the court noted that the variety of topics the class members discussed via electronic communications could be viewed as though each class member had a file titled “Everything About Me”.  The court further concluded that if the documents were in hard copy, and if they were relevant, they would be discoverable.  Finally, the court further concluded that the fact that much of the information/documentation sought was stored on Facebook, where it was accessible to others, presented an even stronger case for its disclosure in discovery.  As a result, the court directed the class members to submit the requested information/documentation to a “Special Master” appointed by the court, for his/her review.

Despite the court’s order, and despite the EEOC’s assurances to the court that it would abide by that order, the EEOC was recently sanctioned for failing to do so.  Specifically, in a February 27, 2013 order, the court found that the EEOC had, in several material respects, made the discovery of claimant’s social media more time consuming, laborious and adversarial than it should have been.  The court further concluded that the EEOC had agreed to various discovery procedures only to later renege on those agreements.  As a result, the court directed the EEOC to pay the employer its reasonable attorney’s fees for having to make its motion.

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