Magistrate Judge Orders Production of Social Media Discovery But Fashions Novel Protocol Designed to Protect Privacy Concerns

Where the requesting party makes a threshold showing of relevance, courts now routinely grant discovery of social media notwithstanding so-called “privacy objections.” Indeed, as one court recently noted, there is “no principled reason to articulate different standards for the discoverability of communications through email, text message, or social media platforms.” But on November 7, 2012, in EEOC v. Original Honeybaked Ham Co., Magistrate Judge Michael E. Hegarty of the United States District Court for the District of Colorado ordered all class members to produce social media discovery to the defendant subject to what the EEOC ultimately called a “somewhat unusual procedure.”

Dispensing with the plaintiffs’ relevancy objection, the Court first found that the defendant was not engaging in “the proverbial fishing expedition,” since it had already demonstrated the relevancy of content from the Facebook wall of one plaintiff. Though relevancy was no obstacle, the Court took heed of the plaintiffs’ “privacy concerns” and established a “process designed to gather only discoverable information”:

• First, the class members were required to produce to a court-appointed special master cell phones used during the relevant period, and information necessary to access social media websites, email accounts, blogs, or other platforms “used for communications or pictures” during the relevant period.
• Second, the parties were ordered to create and provide answers to a questionnaire to identify sources of discoverable information, and to provide the special master with instructions defining the discovery parameters.
• Third, the Court would conduct an in camera review, culling that which it found “legally relevant under the applicable rules.”
• Fourth and finally, the EEOC could then conduct a privilege review of this data, ultimately producing only non-privileged, relevant materials to the defendant, together with the requisite privilege log, if any.

It is curious that the Honeybaked Ham Court took these precautions in response to the plaintiffs’ privacy concerns. As noted, many other courts, in contrast, have held that there can be no expectation of privacy in social media. In Zimmerman v. Weis Markets, for example, the Court noted that “[a]ll the authorities recognize that Facebook and MySpace do not guarantee complete privacy.” (You can read a detailed discussion of Zimmerman here.) The Zimmerman Court “flatly rejected” a proposal similar to the protocol that the Honeybaked Ham Court ordered since it would impose “an unfair burden” on the court and require it “to guess as to what is germane to defenses which may be raised at trial.” What’s more, the Honeybaked Ham Court itself specifically likened social media to “a file folder titled ‘Everything About Me,’” which was “voluntarily shared with others.” Under the circumstances, it is difficult to justify an expectation of privacy.

Addressing another hot topic — cost shifting — the Honeybaked Ham Court initially ordered the parties to split the costs of the forensic evaluation, notwithstanding its finding that “the potential cost of producing the discovery is commensurate with the dollar amount at issue.” The Court further indicated that it would “relieve the Plaintiff / Claimants of monetary responsibility” if “this effort produces little or no relevant information.” The Court later issued an amended order modifying the discovery protocol to allow an EEOC employee with forensic qualifications to undertake the tasks previously assigned to the special master, “at the cost of the EEOC (utilizing outside vendors as necessary).” Thus, it seems that the EEOC will bear the costs of this endeavor.

Notably, on November 21, 2012, the EEOC filed objections to the Magistrate Judge’s Order pursuant to Federal Rule of Civil Procedure 72. The defendant responded on December 10, 2012, but significant portions of that response are not publicly available. Thus, it remains to be seen whether the rulings discussed above are final. Any further significant developments will be reported here.