When members of a class brought suit against Original HoneyBaked Ham Co. (“HBH”) for Sexual Harassment and Retaliation, HBH attorneys had already determined that Electronically Stored Information (ESI) stored on certain class member’s mobile devices and social media accounts would be highly relevant. Armed with a telling copy of one of the class member’s Facebook postings, attorneys for HBH persuaded the court to order the production of the class member’s mobile devices and social media account login credentials. Arguing that text messages and social media postings were likely to contain ESI that would shed light on the class member’s alleged emotional and financial damages, HBH successfully made their case for the compelled production
“The fact that [documents] exist 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.”
– From the HBH opinion
Proportionality is a Factor
Acknowledging that the value of the case was believed to be in the low to mid seven figures range, the court accepted the reasonableness of the cost of collecting and producing the ESI from mobile devices and ruled that the parties should split the associated costs equally.
The Role of the Special Master
As a means of mitigating the potential disclosure of private, non-related, or privileged information, the parties agreed to the use of a well-defined examination protocol, and the appointment of a Special Master that would review the related ESI in camera, providing the Member’s attorneys with an opportunity to review the data before it was released to HBH counsel.
- Do your homework. Take seriously your duty to investigate. The preliminary facts gathered by HBH attorneys (eg., a copy of a Facebook posting, and evidence of relevant text messages) was instrumental in convincing the court to agree that production of the devices and social media login credentials was reasonable.
- Don’t Let privacy objections get in the way. When seeking ESI on personal mobile devices from your adversary, have a thoughtful imaging and analysis protocol in your pocket that pro-actively addresses your opponent’s likely privacy concerns. The protocol should address non-disclosure issues, data security, as well as a reasonable process for examining the ESI and enabling your opponent to conduct a privileged review. This protocol can take the wind out of your opponent’s sails, and it will impress the judge.
- Consider a Special Master. Be prepared to suggest the use of a special master to the court and your adversary if you are unable to agree on protocol. A special master can review ESI in camera and assuage your adversary’s fears about privacy and the production on non-relevant or confidential data. Many judges are embracing the notion of a special master as technology issues in the courtroom grow in complexity.
- Remember: Social Media ESI can disappear! In those cases in which social media is likely to be relevant, consider collecting and preserving this potential evidence in advance of litigation. You will be glad you did. Indications that your adversary made “changes” to their social media accounts or deleted certain posts can be powerful evidence when attempting to demonstrate a guilty frame of mind.
 EEOC v. Original Honeybaked Ham Co. of Georgia, 11-cv-02560-MSK-MEH, 2012 U.S. Dist. LEXIS 1060285 (D. Colo. Nov 7, 2012)