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Court approves discovery questionnaire seeking social media information

Arnstein & Lehr attorney Jesse R. Dill

Jesse R. Dill

Employers and in-house counsel facing class-wide litigation received a welcome opinion from the District of Colorado to kick-off the new year. In EEOC v. The Original Honeybaked Ham Co. of Georgia, Inc., the court approved a questionnaire for claimants to identify numerous sources of electronic information, including that which could be used to access social media accounts.

The case involves claims brought by the EEOC for sexual harassment, a hostile work environment, and retaliation under Title VII. The defendant sought discovery from a number of sources regarding the class members’ emotional and financial damages. In describing the requests for social media materials, the court described such services as a folder titled “Everything About Me” for each class member. The court agreed that discovery of additional social media content was relevant and should be produced based on some statements the defendant showed were on a plaintiff’s Facebook account.

The court ordered the parties to create a questionnaire to distribute to class members to identify certain electronic evidence that would be analyzed by a special master. This questionnaire was to include “necessary information to access any social media websites used by such person[.]” Sure enough, the court’s latest order approved the questionnaire agreed to by the parties. The information claimants are ordered to provide includes:

  • “From January 1, 2009 to the present, I have used the following social media websites (for instance, Facebook, Twitter, LinkedIn, Google+, MySpace, etc.), if any:
  • “For each social media website identified in response to Question No. 12 above, you are required by a Court Order to disclose any user names and passwords to a neutral third-party appointed by the Court to conduct a search of social media. Do you agree to provide this user name and password information to the third party vendor appointed by the Court? Agree/Do Not Agree [circle one]”

This order represents a unique development in the world of discovery. It is not uncommon for courts to order production of social media information. Though few, there are an increasing number of examples where defendants obtain broad access to all profile information. A district court requiring password information to provide third-party access should draw most litigators’ attention and may be useful to employers looking to pursue social media information.