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The Practical Employer

The Practical Employer

In Compelling Discovery, Court Likens Social Media Account to 'Everything About Me' Folder

Part of the struggle we face in seeking discovery of employees' social media accounts is educating the judges who decide the motions to compel.

November 14, 2012
Related Topics: Harassment, Discrimination and EEOC Compliance, Social Media, Policies and Procedures
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Courts are all over the map on whether to order the disclosure of an employee's social media accounts during discovery in employment cases. The seminal case—EEOC v. Simply Storage Management, decided more than two and a half years ago—ordered the broad discovery of an employee's social media accounts when the case alleges something more than "garden-variety" emotional distress. Since Simply Storage Management, however, some courts have begun to retract from that broad position, finding that despite the non-private nature of most social media, employees nevertheless enjoy some right not to have their personal lives ripped apart without some showing of relevancy to the issues in the case.

This month, however, brings us EEOC v. The Original Honeybaked Ham Co. (D. Col. 11/7/12) [pdf], which presents one of the most liberal views of the discovery of employees' social media accounts since Simply Storage Management.

Honeybaked Ham involves allegations of sexual harassment brought by the EEOC on behalf of a class of two dozen female employees. The employer sought discovery of "numerous categories of documents" related to the class members' emotional and financial damages, credibility, and bias, including the contents of their social media accounts.

The court concluded that there was "no question" that the company had established that "the documents it seeks contain discoverable information." The court went on to make the following broad-based comment about the role of social media accounts in discovery:

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? There is a strong argument that storing such information on Facebook and making it accessible to others presents an even stronger case for production, at least as it concerns any privacy objection. It was the claimants (or at least some of them) who, by their own volition, created relevant communications and shared them with others.

This case is but one in the evolving landscape of social media discovery in employment cases. Part of the struggle we face in seeking discovery of employees' social media accounts is educating the judges who decide the motions to compel. The reality, however, upon which the Honeybaked Ham court seized, is that while the medium of communication might be different, the rules of the road are the same. Discoverable information is discoverable information, whether it's a paper record or an electronic diary.

The image of an "Everything About Me" folder is a powerful one. I love that analogy, and I am certain I will be using it in future motions to compel to help educate as to why a Facebook or other social media accounts should be discoverable.

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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