Forensic Update

Reflections on information management within the legal and regulatory arena

Social Networking updates deemed discoverable evidence…

Posted by Johnny Lee on September 9, 2010

Facebook Update Sample

In a matter before the U.S. Equal Employment Opportunity Commission (“EEOC”) earlier this year, a discovery order in the district court case of EEOC v. Simply Storage Management (Southern District of Indiana) determined that certain types of information from social network sites are discoverable to employers defending a claim of sexual harassment.  While this introduction alone is worthy of its own article, it is interesting to note the electronic discovery complexities that may flow from such a precedent.

In the Simply Storage matter, two females filed claims of sexual harassment, and the EEOC filed a complaint on their behalf.  The employer, Simply Storage Management, requested the production both of [1] “all photographs or videos posted by [or of] claimants…on Facebook or MySpace” from the start of their employment to the date of the filed claim and [2] all “updates, messages, wall comments…for the same time period.”

The defendant posited that this discovery request was proper because the EEOC’s claim had put the “emotional health” of the claimants at issue, indicating that the alleged harassment had caused the claimants to be “depressed and [to suffer] from post traumatic stress disorder.”  The EEOC agreed, but it limited the requested social networking discovery to items that were responsive directly and exclusively to “matters alleged in the complaint.”

While the procedural maneuvering here is certainly interesting, what is also somewhat fascinating is that this discovery (of social networking updates) will now become de rigueur for employers defending harassment claims.  Accordingly, in addition to adding this move to defense counsel’s playbook, litigators will now need to appreciate even more the nuances and complexities of the data preservation, collection, and analysis of this seemingly ephemeral information—especially in light of the fact that some of these postings are likely to be outside the direct control of the parties to the lawsuit.

2 Responses to “Social Networking updates deemed discoverable evidence…”

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