With over one billion active Facebook users and 500,000,000+ Twitter accounts, it is no surprise that the discovery of messages, status updates, wall posts, tweets and pictures shared on social media has become a battle ground in sexual harassment and discrimination lawsuits.  Given that over half of social media users are posting from their mobile devices, individuals are not only sharing large amounts of relatively personal information on-line but they are also increasingly sharing that information in real-time with just a click.  As such, individuals are often failing to think through how the information might be perceived or used, including in a potential discrimination or harassment lawsuit.

A decision earlier this month by the United States District Court for the District Court of Colorado is illustrative of both the social media discovery battleground and the failure of individuals to post to social media with caution.  In EEOC et. al. v. The Original HoneyBaked Ham Company of Georgia, Inc., the EEOC filed a sexual harassment and retaliation lawsuit on behalf of ~20 female employees.   In the complaint, the EEOC alleged that Wendy Cabrera, a manager at the Highlands Ranch, Colorado store, and a class of female employees, suffered from repeat and offensive unwanted sexual comments, innuendos, and physical touching by their regional manager despite frequent protests. Additionally, the EEOC claimed, a number of the women were disciplined or discharged by the company for complaining up the chain of command about the treatment.

In discovery, the employer sought copies of the information the women had shared in their various social media accounts arguing that it was relevant to damages as well as to the credibility and bias of certain of the women.  The EEOC objected to the discovery requests based on privacy concerns and also argued that the employer was on a fishing expedition.

Court’s Analysis

In beginning its analysis, the court likened the information the women had shared on social media to a file folder titled “Everything About Me,” the contents of which needed to be reviewed for relevant information or information that may lead to the discovery of admissible evidence.  He noted that the fact that the information existed in cyberspace on an electronic device instead of a hard-copy file folder was a logistical and perhaps a financial problem but did not preclude it from being otherwise discoverable in a lawsuit.

In concluding that the contents of the “Everything About Me” file folders contained discoverable information the court pointed to the following information posted by Plaintiff Cabrera on her Facebook account as “potentially relevant in this lawsuit:”

1. A photograph of Plaintiff Cabrera wearing a shirt with the word “CUNT” in large letters across the firm (relevant because plaintiff had alleged the term was used pejoratively against her and because she claimed the use of the term offended her);
2. Musings about her emotional state caused by the loss of a beloved pet and a broken relationship;
3. Writings about her positive outlook on life post-termination;
4. Writings about her self-described sexual aggressiveness;
5. Statements about actions Plaintiff engaged in as a supervisor – including about how she terminated one of the other female employees who is a class member in the lawsuit;
6. Sexually amorous communications with other class members; and
7. Plaintiff’s post-termination employment and income opportunities and overall financial condition.

Special Master In Camera Review 

Although the judge concluded that the social media being requested by the employer contained discoverable information, he also recognized that the social media contained other information not relevant to the lawsuit.  In an effort to balance the privacy concerns raised by the EEOC with the right to discovery by the employer the court stated his intent to appoint a forensic expert to serve as a special master.  Under the process established by the court, the female employees were ordered to provide the following directly and confidentially to the special master:

1. Any cell phone used to send or receive text messages from January 1, 2009 to the present;
2. All necessary information to access any social media websites used by such person for the time period January 1, 2009 to present;
3. All necessary information to access any email account or web blog or similar/related electronically accessed internet or remote location used for communicating with others or posting communications or pictures, during the time period January 1, 2009 to present.

Implications for Employers and Employees

Social media is here to stay.  It is being used by managers, individual contributors and hourly employees.  Personal and business information is being shared digitally and on social media using business and personal electronic devices.  It is being generated constantly and often with seemingly little thought – from the office, the break room, the manufacturing floor, business trips, happy hours, holiday parties, birthday parties, personal residences, vacations …..

This ruling is likely just one of many we can anticipate as the legal system works through the thorny and novel issues presented by social media.  It serves as a good reminder to employees that everything they do and say electronically and in social media will likely be scrutinized should they file a lawsuit.  It is also worth noting, however, that (as my mother would say) “what’s good for the goose is good for the gander” and employers should be delivering similar reminders to their managers.  In this age of electronic gadgetry and social media the line between personal and business is getting much more difficult to navigate.  Employers and employees need to proceed with caution.

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