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Social Media Posts and Litigation Discovery

With the use of real-time social media posts becoming
ubiquitous, employees need to be increasingly aware of the possibility that
what they post on Facebook or Twitter may be discoverable in a potential
discrimination or harassment lawsuit.

In a recent EEOC case, the Commission filed suit on behalf
of 20 female employees of the Original HoneyBaked Ham Company who were claiming
sexual harassment and retaliation by their employer
. The women claimed that
they were subjected to repeated offensive and unwanted comments and inappropriate
physical contact by their regional manager. The EEOC claimed that when a number
of the women complained, they were disciplined or discharged in retaliation for
reporting the abuse to upper management. During discovery, the Company sought
to obtain information that had been shared in the women’s social media
accounts, claiming it was relevant to calculating damages, as well as to
establishing bias.

The Court considered the information contained in the
women’s social media accounts to be similar to an “Everything About Me” folder
that would have to be reviewed for relevant information or information that
could lead to the discovery of admissible evidence. The Court pointed out a
number of items (contained in one woman’s account) that were potentially
relevant to her suit, including a picture of a T-shirt worn by the plaintiff,
writings by the plaintiff about her emotional state, sexual communications with
other members of the lawsuit, and writings by the plaintiff regarding her mental
outlook after being fired. In response to privacy concerns raised by the EEOC,
the Court appointed a forensic special master to review the social media
information provided by the employees.

There are a number of implications for
employees. As we have seen time and time again, social media information is
very public, and employees can base hiring and firing decisions on information
employees place on the internet. Employees need to be especially careful given
that posts to Facebook and Twitter are now possible from a cell phone with the
push of a button; what happens with little forethought may come back to haunt
you in a potential lawsuit. Employees should realize that less is more when it
comes to putting potentially harmful information online. Courts are going to
continue to have to grapple with social media and employment law issues as more
and more hiring and firing decisions revolve around semi-private information
posted to a social media outlet.