Judge Orders Plaintiffs in Sexual Harassment Case to Produce Social Media Passwords

EEOC v. Original Honeybaked Ham Co. of Georgia By Jessica Vosgerchian — Edited by Geng Chen Equal Employment Opportunity Comm’n v. Original Honeybaked Ham Co. of Georgia, No. 11-cv-02560-MSK-MEH (D. Colo. Nov. 7, 2012) Slip opinion (hosted by The Workplace Class Action Blog) The magistrate judge in a sexual harassment class action against The Original Honeybaked Ham Company of Georgia (“Honeybaked Ham”) has ordered plaintiffs to produce passwords to their social media and email accounts as well as surrender their cell phones to a court-appointed special master who will review the materials for discoverable information. The class action, brought by the Equal Employment Opportunity Commission (“EEOC”) on behalf of 20–22 women who worked for Honeybaked Ham, alleges that company manager James Jackman subjected the employees to sexual comments and groping, and retaliated against women who complained by firing them. Colorado Magistrate Judge Michael E. Hegarty’s November 7 order marks a novel approach to the problem of how to treat semi-private online communications in discovery. Eric Goldman’s Technology & Marketing Law Blog contends that the court should have ordered plaintiffs to collect and produce relevant information from the accounts themselves rather than provide full access to a special master. The Workplace Class Action Blog, meanwhile, finds Judge Hegart’s plan “relatively low-cost and efficient,” and, because an independent official will screen for irrelevant information, sensitive to the EEOC’s concern that the plaintiffs’ full social media activities could bias the judge against them. The order comes in response to Honeybaked Ham’s argument that the plaintiffs’ text messages, Facebook activity and emails should be produced because the communications likely contain information relating to the plaintiffs’ motivations in bringing the suit and their emotional states. See id. at 3–4. Judge Hegarty fit the plaintiffs’ disclosures on Facebook and other platforms into a brick-and-mortar conception of discoverable information: “I view this content logically as though each class member had a file folder titled ‘Everything About Me,’ which they have voluntarily shared with others. . . . The fact that it 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.” Id. at 2–3. The court rejected the EEOC’s privacy objections on the grounds that the plaintiffs had disclosed the information in a public forum. Reasoning that the defendant’s access to one plaintiff’s Facebook had already exposed a “significant variety of relevant information,” Judge Hegarty ruled that Honeybaked Ham’s request for the social media content of the entire class was not “the proverbial fishing expedition.” Id. at 4. Judge Hegarty’s plan involves several steps to screen the plaintiffs’ online and text communications for relevancy, which he said will mitigate privacy concerns. After the special master identifies potentially relevant information from the plaintiffs’ accounts and texting history, Judge Hegarty will conduct an in camera review to decide what documents he will require the EEOC to produce. At that point, the EEOC will perform a privilege review, record any objections to the information selected by Judge Hegarty, and deliver non-privileged documents to the defendant. Id. at 5­–6. The parties will bear the cost of the discovery equally. Id. at 6. The ruling’s innovative discovery plan undoubtedly presages looming battles over how, when, and why social media content may be discoverable. In the meantime, litigating parties would be wise to keep their thoughts on their suits to themselves and away from Facebook.