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Social Media and Discoverability – a thorny issue

In a recent talk I gave on Social Media and the law, the issue of discoverability of social media evidence was a hot topic and I recently came across another interesting case EEOC v Original Honeybaked Ham Company of Georgia Inc., No.11-02560-MSK_MEH (D.Col. Nov.7, 2012) reported on the excellent Delaware Employment Law Blog.This case concerned the filing of suits on behalf of twenty female employees (known as a “class action”) by the Equal Employment Opportunity Commission (“EEOC”) who alleged that such employees had been subject to unlawful sexual harassment and retaliation by their former employer. The Defendant employer had sought to compel the twenty employees to produce unredacted versions of their social media accounts.The Court acknowledged that discovery of social media information was a “thorny and novel” of law and noted “The fact that [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 third party opponent in litigation”.The Court concluded that the evidence was discoverable and was reported to be based on postings by one of the former employees on her Facebook page where she discussed a number of matters including her financial expectations in the lawsuit and also post termination employment and income. Other employees in the class action also posted comments to this employees Facebook page.In relation to the privacy rights of the twenty employees, the Court noted that such a process was needed to determine only relevant discoverable information would be gathered and it appointed a forensic expert as a special master. The employees were ordered to provide “all necessary information to access any social media website” the employee had used during the relevant time period.In essence the Court granted the employers motion to compel and required the employee class members to turn over their passwords and log in information to a special master who would make an initial determination as to discoverability.The issue of discoverability of social media will continue to trouble courts going forward and whilst we have not had to deal with these issues on any consistent basis yet in the Irish Courts, we continue to seek guidance from overseas in relation to this thorny issue.

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