Post Summer Part 5 of 5 – Continuing the Discovery

Last week began this series of five posts to highlight five developments from this past summer in the area of social media and employment law.   In the final Part 5 today:  The discoverability of private social media posts in employment law lawsuits.

Jewell v. Aaron’s, Inc. is a wage and hour (overtime) case pending in federal court in the Northern District of Georgia.   In these types of cases, an employee (on behalf of himself or herself, and seeking to represent a similarly situated group of other employees) primarily alleges that more than 40 hours were worked in a workweek, yet overtime compensation was not paid for those hours in excess of 40.   One of the claims in Jewell is that the company automatically deducted 30 minutes from employees’ pay for a meal period, even though the employees did not always take the meal break.

The company argued that employees did take lunch breaks, and sought to develop proof of that by seeking discovery of postings that all plaintiffs made to various social media web sites during work hours (to show that employees were taking breaks when they made the posts).  The company’s ability to defend these claims was particularly critical, since 1,700 individuals “opted in” to join the lawsuit, with 87 of them randomly selected to participate in whatever discovery would ultimately be permitted by the court.

Plaintiffs objected to the social media discovery requests as “unduly burdensome,” and estimated that searching each of the requested web sites and comparing the posts with each employee’s work schedules “could require anywhere from 1,323 hours to 26,462 hours, depending on the number of daily posts made by each opt-in plaintiff.”

On July 19, 2013, the court denied the company’s request for the discovery.  Recognizing that content from social media sites “may be subject to discovery,” the court found that the company’s identified benefit did not outweigh the burden.   Indeed, the court’s rationale is consistent with denials in other cases we have highlighted in this blog, in that the company was found not to have made a sufficient showing (beyond speculation) that “the broad nature of material it seeks is reasonably calculated to lead to the discovery of admissible evidence.”

In other words, the court found that the burden on plaintiffs was outweighed by the company’s desire to get relevant information, when that desire was expressed only as a possibility or hope that relevant information may be found.

Employer Take Away:   What should you as an employer take away from this development?   

When thinking about whether and when to seek social media-related discovery in your next lawsuit, consider two points:

            1.         Take as much discovery as you can through other means before seeking discovery of social media sites.

            2.         To reduce the likelihood that your ultimate request appears to be a fishing expedition, base your request for discovery of social media sites on a showing that the posts will lead to evidence directly tied to the prosecution or defense of the particular claims in your case.

About Michael Schmidt

Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.