It’s official—failure to produce social media evidence in eDiscovery is a serious and punishable sin.
In the ongoing case EEOC v. The Original Honeybaked Ham Co. of Georgia, Inc., the court has hammered a federal agency for failure to produce social media in a timely manner. Or as the opinion has it, for engaging in “inappropriate and obstreperous” and “contumacious behavior.”
Let’s see if we can put this in plain English.
The EEOC alleges that a manager of the Original Honeybaked Ham Company sexually harassed numerous female employees. But, as the court puts it, several claimants have been, “liberal in expressing their views about Defendant and their thoughts about this lawsuit using emails, texts, and blogging.”
The defendant submitted discovery requests of this social media content, but the EEOC has, “made this endeavor more time consuming, laborious, and adversarial than it should have been.”
Quoting an earlier decision, judges wrote that under Rule 16(f), courts have, “very broad discretion to use sanctions where necessary to insure not only that lawyers and parties refrain from contumacious behavior, …but that they fulfill their high duty to insure the expeditious and sound management of the preparation of cases for trial.”
In this case, the court declined to impose full sanctions on the EEOC, noting that its attorneys have been much more cooperative of late.
However, it did rule that the agency had to pay attorneys’ fees and costs expended for the defendants related to the ongoing social media discovery fiasco.
Social media is part of discovery.
As we’ve noted before, social media is now a part of any eDiscovery process. It must be treated just like any other type of digital record, despite the special challenges in archiving and preserving content that is frequently changing or even disappearing.
For more a detailed overview of how social media discovery works, you can also read the order for search terms and scope of discovery in this matter.