Court Finds Social Media, Emails And Texts Discoverable; Employs Special Master To Sift Through Everything
As we have opined about before at IT-Lex, emails can carry a “reasonable expectation of privacy,” but this expectation does not necessarily extend to Facebook and related social media websites (assuming people still use MySpace or Friendster). In a recent case brought by the EEOC—champion of employees, scourge of employers—the EEOC alleged that the employer sexually harassed and retaliated against a class of 20-22 female employees in violation of Title VII.
The employer moved to compel the production of certain social media content and text messages belonging to the plaintiffs, asserting that the information was relevant to the plaintiffs’ emotional and financial damages (as we have discussed before, Facebook postings or analytics may be relevant to establishing a plaintiff’s emotional damages). Although the court did not detail the EEOC’s arguments against production, the analysis indicates that the EEOC attacked the accessibility and attendant expectations of privacy associated with such information. Addressing the categories in turn, Magistrate Hegarty, of the District Court for the District of Colorado, began with the employer’s request for social media content. Underscoring the voluntary nature of using social media websites, the court established the basic premise of its holding:
The fact that [relevant information] 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. [2012 WL 5430974, at *1]
Against that backdrop, the court detailed the Facebook evidence that the employer had provided the court to establish that its requests sought relevant and discoverable evidence:
Intervenor Cabrera posted on her Facebook account statements that discuss her financial expectations in this lawsuit; a photograph of herself wearing a shirt with the word “CUNT” in large letters written across the front (a term that she alleges was used pejoratively against her, also alleging that such use offended her); musings about her emotional state in having lost a beloved pet as well as having suffered a broken relationship; other writings addressing her positive outlook on how her life was post-termination; her self-described sexual aggressiveness; statements about actions she engaged in as a supervisor with Defendant (including terminating a woman who is a class member in this case); sexually amorous communications with other class members; her post-termination employment and income opportunities and financial condition; and other information. [2012 WL 5430974, at *2]
The court held that each of the foregoing categories was relevant and should have been produced if it were in a hard copy. The court then ruminated on whether the outcome should be different because the information was on the plaintiffs’ Facebook accounts. Without detailing the effect of privacy settings and whether such settings would affect an individual’s expectations of privacy, the court noted that there was a strong argument that the information was accessible to others on Facebook and, thus, discoverable. The court also concluded that the employer’s use of the term “document” in its request for production was broad enough to encompass text messages, which were also discoverable.
Mindful of the plaintiffs’ privacy concerns and the potential that irrelevant information would be caught by casting such a wide net into the plaintiffs’ social forays, the court established the following procedures to review the material in camera, through the use of a special master, prior to production to the employer:
Plaintiff–Intervenor and the class members shall 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. [2012 WL 5430974, at *2-3]
From there, the parties were ordered to collaborate to create questionnaires to provide to the plaintiffs to identify potential sources of relevant information and also draft instructions to be given to the special master defining the search and collection parameters. Next, the special master will review the documents and provide them to the court (ironically) in hard copy, so that the court can review the information in camera. The court will then deliver the relevant material to the EEOC to conduct a privilege review and, ultimately, the employer will get the documents it requested.
It is yet to be seen whether the parties can agree on a questionnaire and parameters for the special master (they were due to the court on November 14, 2012), or whether additional disputes arose that will require further court intervention. We will keep you posted.