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Employees, If You Don't Want Us to Get Your Social Media Info in Discovery, Don't Post!

Employees, if you do not want your social media posts to be reviewed in a lawsuit you file, stop posting. Stop writing about your post-termination state of mind. Stop communicating with former co-workers. Stop writing about your lawsuit.

January 28, 2013
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Related Topics: Top Stories - Frontpage, Technology and the Law, Harassment, Discrimination and EEOC Compliance, Social Media
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In EEOC v. The Original Honeybaked Ham Co.—a hostile environment sexual harassment brought by the EEOC on behalf of 20 female employees—the federal court compelled the plaintiffs to produce their social media profiles. Donna Ballman, writing at Screw You Guys, I'm Going Home, argues that the court botched this ruling because an order compelling the production of social media information in a sex harassment suit can only lead to an employer arguing that that the plaintiffs "asked for it." Donna argues:

The big smoking gun the employer pointed to was a shirt one of the women wore in a photo with the word, "Cu**" on it. Apparently, if you wear such a shirt on your own time, no matter your intent, you have extended an open invitation to all your supervisors and male coworkers to sexually harass you. Sort of like the argument that African-American employees who use the n-word can't be offended when someone else uses it toward them.

Donna's argument, however, misses the mark. The court did not compel the production of the employees' social media accounts to bolster a "they asked for it" defense. The court ordered the production because one of the employees "posted on her Facebook account statements that discuss her financial expectations in this lawsuit," and wrote about "her post-termination employment and income opportunities and financial condition." She also wrote about other potential causes for any emotional harm (a lost pet), and her positive outlook on life following her termination. Other of the plaintiffs joined in at least some of these posts.

There are two key issues in any case: liability and damages. The court primarily ordered the production of the social media information to permit the employer to build a defense as to the latter. An employee's financial motivations and emotional well-being are relevant to showing that she has not been harmed to the extent she is claiming, if at all.

Moreover, the court did not compel the free and unfiltered production the employees' social media accounts. It required an in camera inspection by the court, along with of a forensic special master and detailed questionnaires for each plaintiff to complete concerning their online activities. This case is not an example of a court irresponsibly ordering a prying into plaintiffs' private lives under the guise of discovery. This court went above and beyond to prevent any unnecessary invasions of privacy while ensuring the employers' right to gather relevant information.

The bottom line is that social media profiles are a potential treasure trove of information in litigation. Employees, if you do not want your social media posts to be reviewed in a lawsuit you file, stop posting. Stop writing about your post-termination state of mind. Stop communicating with former co-workers. Stop writing about your lawsuit. And, stop posting photos of yourself wearing a "cu**" t-shirt. If you post, rest assured it will likely be fair game to use against you in the lawsuit you chose to file. As the Honeybaked Ham court reminds us: "If all of this information was contained on pages filed in the "Everything About Me" folder, it would need to be produced. Should the outcome be different because it is on one's Facebook account?"

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

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