2014: Winter Issue

In A Lurid Story Of E-Discovery And Ham, Magistrate Judge Tells Parties To Pay For A Forensic Expert To Sort Through The Data

In case you read the E-Discovery Brief to your kids at night, please be aware that this article contains sexual content not suitable for children under the age of, well, it's just not suitable. This is a story that involves sexual harassment, text messages, amorous Facebook^® musings, foul language, and ham-ham that is smoked for more than 20 hours "then finished with a sweet crunchy glaze."   Also, this story involves electronic discovery.

In this story, the Equal Employment Opportunity Commission (EEOC) brought claims against the Original HoneyBaked Ham Company of Georgia, Inc. HoneyBaked allegedly subjected female employees to sexual harassment and retaliated when they complained about the harassment. HoneyBaked wants the women's social media information to assess their emotional and financial state during the time they are claiming they were distressed by the whole alleged affair, and to assess their credibility.

Magistrate Judge Michael E. Hegarty of Colorado said the class members used social media to communicate with each other about their treatment at HoneyBaked. The court explained that each class member voluntarily filled up a background folder titled "Everything About Me." The judge said that if there is relevant material in those folders that may lead to admissible evidence, "the presumption is that it should be produced." 

"The fact that [the 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 party opponent in litigation." (EEOC v. The Original HoneyBaked Ham Company of Georgia, No. 1:11-cv-02560-MSK-MEH, USDC Colo.).

Judge Hegarty determined that "there is no question [HoneyBaked] has established that the documents it seeks contain discoverable information." For example, he pointed to a photo one of the women posted of herself wearing a t-shirt imprinted with a foul adjective-easily the most offensive term used to describe a woman-a term she says a HoneyBaked employee used to describe her. Also on her Facebook page, according to the judge's order, this class member shared her financial expectations from the suit, her feelings about the loss of a pet and a broken relationship. She also described her positive outlook on life post-termination, her sexual aggressiveness, her post-termination employment, her sexual liaisons, her income opportunities, and sexually amorous communications with other members of the class. The list goes on. (Are you ready to close your Facebook account yet?)

Judge Hegarty found all of these categories potentially relevant and ordered more of the same.   

"Given the fact that [HoneyBaked] has already obtained one affected former employee's Facebook pages, and that those pages contain a significant variety of relevant information, and further, that other employees posted relevant comments on this Facebook account, I agree that each class member's social media content should be produced, albeit in camera in the first instance. I do not believe this is the proverbial fishing expedition; these waters have already been tested, and they show that further effort will likely be fruitful."

The judge said he appreciated the privacy concerns raised by the women, and that he "was not sold" on HoneyBaked's alleged areas of relevant information, particularly that the information would demonstrate a positive attitude among the women. So, he established a process "designed to gather only discoverable information." And to do so he will use a forensic expert as a "special master," which the parties will pay for. 

With that, he directed the parties to provide any cell phone used to send or receive text messages during the relevant time frame; access to social media websites used during the relevant period; and access to relevant email accounts or blogs.

The parties will collaborate to create a questionnaire for the claimants designed to identify potential sources of discoverable information; and instructions for the special master defining the parameters of the information he will collect.

The Court will review hard copies of the material in camera and require the production to HoneyBaked of only that information he determines is legally relevant. The court will then deliver relevant material to the EEOC, which will conduct a privilege review, designate the material as appropriate under the Protective Order in this case, then deliver the non-privileged material to defense counsel along with a privilege log containing any withheld information. All irrelevant material will also be returned to the EEOC. The judge said he would provide the EEOC an opportunity to make a record of objections to the material determined to be relevant.

Key Takeaways

●     If your client is claiming emotional and financial distress, assume that their most private data may be considered fair game in court.

●     Do not think you or your opponent will decide a forensic expert is needed in your case.  The judge may make that determination on his or her own.

●     If a court determines a forensic expert is needed, assume you will have to foot the bill.

ell everyone you know-your children, your friends, your accountant-do NOT post anything on their social media site or say anything in email or text that they would not want the world to know now or anytime in the future.