Plaintiffs in an employment discrimination lawsuit brought by the Equal Employment Opportunity Commission (“EEOC”) recently were ordered to hand over their cell phones and Facebook account passwords for in camera (i.e. private) inspection by a federal Magistrate Judge.
In this case, the EEOC brought suit alleging the defendant employer had subjected a class of female employees to sexual harassment and retaliation. During the course of discovery, the employer moved to compel the production of various text messages and social media posts. According to the Magistrate Judge, there was no question the defendant employer had established this information was potentially discoverable. The defendant had shown, for example, that one of the plaintiffs posted on her Facebook account statements that discussed her financial expectations in the lawsuit, her emotional state, and various other matters related to the ongoing litigation. The fact that this information was generated in cyberspace was irrelevant to the Magistrate Judge’s analysis:
From here, the Magistrate Judge will review the electronic data to determine what communications are relevant to the lawsuit and therefore necessary to produce. The Discovery Order serves as an important reminder for employers: electronic communications (e.g. text messages and social media posts) often become a focal point during litigation for both parties. While the outcome in this case was favorable for the employer, scandalous text messages or Facebook posts from a supervisor can easily create problems for a business defending against a discrimination/harassment lawsuit.
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