Women suing an employer for sexual harassment will have to provide a court official with their social media and e-mail passwords. The novel procedure was announced by a Colorado federal magistrate judge earlier this month. Wendy Cabrera is the lead plaintiff in a lawsuit against the Honeybaked Ham Company. She and about 20 other women charge that company manager James Jackman "frequently" groped women under his supervision and made sexual requests of them. The woman say the corporate office failed to take action to stop his behavior after it was reported.
Honeybaked Ham argues it needs copies of certain Facebook postings, e-mails, text messages, and other private communications of the plaintiffs in order to defend itself. For example, the company says Cabrera discussed "her financial expectations in this lawsuit" on her Facebook page, which the company says could be useful to establish the plaintiff's motive. The firm also said she posted a picture of Cabrera wearing "a shirt with the word 'CUNT' in large letters written across the front." The defense argues this picture is relevant to the case because Cabrera has charged the word was "used pejoratively against her," and caused her offense.
That's not even all of it. Honeybaked Ham says it will need "other writings addressing her positive outlook on how her life was post-termination, her self-described sexual aggressiveness, statements about actions she engaged in as a supervisor with Defendant, sexually amorous communications with other class members, her post-termination employment and income opportunities and financial condition." And it wants similar information from the other women participating as plaintiffs in the lawsuit.
In a November 7 order recently spotted by Venkat Balasubramani, Magistrate Judge Michael E. Hegarty acknowledged much of the information sought by Honeybaked Ham is potentially relevant to the lawsuit. He noted "the whole area of social media presents thorny and novel issues with which courts are only now coming to grips." However, he said "the fact that [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."
So Judge Hegarty announced he will appoint a "special master" to oversee the process of producing this evidence. He then ordered all the women who signed onto the lawsuit to give the special master access to their cell phones, "necessary information to access any social media websites used," and "necessary information to access any e-mail account or Web blog or similar/related electronically accessed Internet or remote location used for communication with others or posting communications or pictures" since 2009.
Once the information has been produced, the judge will decide which information is relevant to the lawsuit, give the plaintiffs a chance to object to the disclosures, and then turn over appropriate information to the defendants. The costs of this process will be split between the plaintiffs and defendant.
Balasubramani, an attorney who contributes to Eric Goldman's Technology and Marketing Law Blog, is not a fan of this arrangement. "Requiring disclosure of passwords should be completely off the list" of techniques courts use during the discovery process, he argued. "Apart from the fact that this results in disclosure of or access to the entire contents of the account (including information that is not relevant or information that is covered by the Stored Communications Act) it may result in unwitting changes to the account." Instead, Balasubramani recommends that parties be compelled to export data from sites like Facebook and provide the exported data to the court.
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