Discovery Boundaries in the Social Media Game?

By Maggie Tamburro
Due to the high level of interest our last social media post garnered, we decided to tackle the topic again, this time in the context of a recent federal court civil discovery ruling that is sure to spark interest in corporate defendants and plaintiffs alike.

First, Take Our Quiz

Which of the following, if any, have been considered valid by a federal district court in determining whether to allow production requests for electronic information contained in text messages and posted on social media accounts?

(a)  For purposes of discovery, “document” does not contemplate the type or nature of electronic information contained in a text message;

(b)  Text messages directed to a single individual are not discoverable absent a compelling state interest, as they implicate fundamental rights invoking the highest level of constitutional protection;

(c)   The voluntary act of storing and making accessible electronic information on Facebook may provide an argument which favors production over privacy objections;

(d)   The requested electronic information involves issues relevant to the case such as emotional and financial damages, or goes to credibility and bias of claimants;

(e)   Both (c) and (d);

(f)    None of the above.

As for the correct answer, you can find it at the tail end of this post, along with the citation, as we hate to give endings away early.  But a hint – at least two of the responses are wrong (complete with a red herring), according to this case.

The Case

Now on to the case.  The suit, which is ongoing, involves claims brought by the Equal Employment Opportunity Commission (EEOC) alleging that a class of female workers was subjected to sexual harassment, a hostile environment, and retaliation in connection with a Title VII action.

Defendant filed a Motion to Compel late last year involving discovery of claimants' electronic information, challenging the court to consider some red-hot topics:  To what extent is a claimant’s electronic information, such Facebook posts, social media conversations, photographs, or text messages, subject to sweeping discovery in such a case?  To what extent does broad production of electronically stored information lead to the discovery of admissible evidence?  Are such requests endless fishing expeditions which have the potential to violate claimants’ privacy rights?  Or do they validly lead to discovery of admissible evidence?

Many courts seem to be wrestling with similar questions.  Determining where legal boundaries should be drawn when it comes to social media discovery and protection of privacy interests involves balancing often messy constitutional questions and can vary with the nature of the case, issues, claims, and damages at stake.  Thanks to the fact that the ways and venues in which to electronically share every detail of one's life grow with each passing day, the volume of potentially discoverable and relevant information in cyberspace continues to amass.  Don’t expect these kinds of issues to go away any time soon.

Order on the Motion to Compel

The decision on the motion seemed to try to strike a balance between the production requests and claimant’s “semi-private lives,” with the magistrate judge prudently acknowledging, “[T]he whole area of social media presents thorny and novel issues with which courts are only now coming to grips...”.

In short, as part of the ruling on the Motion to Compel, the parties were instructed to collaborate in creating a questionnaire which identified all possible sources of discoverable electronic information and define parameters for its search.  The resulting questionnaire - approved by the magistrate judge in January of this year - requests that claimants provide, for a specified period of time to be disclosed to a neutral third party, the following:

  • All cell phone numbers, user names, and passwords, (including certain text message exchanges) in order to allow search of claimants' cell phones;



  • All social media accounts, user names, and passwords, in order to allow search of claimants' social media sites;



  • All personal e-mail addresses, user names, and passwords, in order to allow search of all of claimants' personal e-mail accounts.


Forensic Expert as Special Master Rejected

In his original order, dated November 7th, 2012, the magistrate judge sought assistance in the form of a forensic expert to act as a special master, to whom the information requested in the questionnaire should be turned over.  However, in an amended order the magistrate judge replaced the special master with a litigation support manager for the EEOC.  The bulk of the order remained unchanged, setting forth a protocol for production of electronic information which may be a useful model for others to consider, particularly corporations if defending against similar actions.  In doing so, the magistrate judge made some points worth noting (that provide clues to answering our question above):

  • “Everything About Me.” The judge likened the class members’ electronic and social media content to actual pages in a folder entitled “Everything About Me,” which the judge emphasized class members had shared voluntarily with others.


 

  • Facebook shouldn’t be treated differently from other “documents.” The fact that such information exists in cyberspace or on an electronic device should not remove the information from accessibility if it is relevant and might lead to the discovery of admissible evidence.  The judge continued, in rhetorical fashion, underscoring his point, “Should the outcome be different because it is on one’s Facebook account?”


 

  • Postings and communications were voluntary. With respect to privacy objections, the judge noted that a strong argument exists for the proposition that posting such information on Facebook (and presumably other sites) and allowing others access to it weighs in favor of production with respect to privacy concerns.


 

  • Case nature, claims, and context matters. Here, the case involved a Title VII suit involving claims that certain female workers were subjected to sexual harassment, a hostile environment, and retaliation.  The defendant sought production of documents to examine class members’ alleged emotional and financial damages, as well as documents pertaining to class members’ credibility and bias.  Thus, the context of the case and issues at stake likely factored into the determination.


 

  • The order was not an ultimate determination of admissibility. In his order on defendant’s Motion to Compel, the magistrate judge made clear that he was only ensuring whether documents sought may lead to the discovery of admissible evidence, and his order was not a determination of what information would ultimately be admissible at trial.


For now the case remains ongoing, as the suit, the discovery dispute, and the ultimate process continues to unfold.

As for the answer to our question, the best answer (according to the ruling on the motion in this case) is (e).

The case and our question is based on E.E.O.C. v. The Original Honey Baked Ham Co. of Georgia, Inc., No. 11-cv-02560-MSK-MEH (D. Colo.)

Do you feel that the breadth and scope of discovery allowed in this case – which included social media conversations, passwords, and text messages – went too far?  Or do you think it was appropriate for the case?
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Maggie Tamburro

Maggie Tamburro is an attorney and writer who holds a Juris Doctor from The John Marshall Law School and a Bachelor of Arts from the University of Texas. She was admitted to the Illinois Bar in 1994 and Florida Bar in 1999 and has significant experience in legal research, editing, and writing. Maggie is active her in local community, holding various publicly appointed civic board positions.

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