EEOC Sanctioned For Failing To Produce Class Claimants' Social Media ESI And Other E-Discovery Misconduct

In EEOC v. The Original HoneyBaked Ham Company of Georgia Inc., 2013 U.S. Dist. LEXIS 26887 (D. Colo. Feb. 27, 2013), the U.S. District Court for the District of Colorado sanctioned the Equal Employment Opportunity Commission (EEOC) for failing to provide social media discovery and for causing unnecessary delays in the e-Discovery process.

The case involves claims filed by the EEOC against the defendant, HoneyBaked Ham, alleging a manager sexually harassed a class of women. The company sought, among other things, social media evidence and text messages to dispute the claimants' liability and damages claims. In November 2012, the court ordered all claimants to turn over to a special master social media communications and any cell phone used to send or receive text messages during the relevant time period for a forensic collection and review. The court further ordered claimants to provide access to any email account, website, or cloud-based storage location that they used to post communications or pictures.

After the EEOC changed its position about how the court's discovery order was to be implemented, and otherwise failed to follow the e-Discovery process, the company filed a motion for sanctions. On February 28, 2013, the court granted the motion and held that the EEOC's shifting behavior in implementing the court-ordered discovery process - while shy of bad faith - improperly delayed the proceedings and unfairly forced the company to spend more money in litigation. The court crafted a unique sanction against the EEOC under Federal Rule of Civil Procedure (FRCP) 16(f) to curb further misconduct.

The court's decision is the first published decision of its kind to impose sanctions for e-Discovery misconduct under FRCP 16, as opposed to the more traditional methods of awarding sanctions under FRCP 37 or the court's inherent authority to impose discovery sanctions. Significantly, a sanction under FRCP 16 does not require a finding of bad faith. Rather, a party need only engage in some kind of unreasonable or obstreperous conduct that delays the discovery process, as the court held the EEOC did in this case.

The court's decision is also a powerful reminder that, just like defendants, plaintiffs have e-Discovery obligations, thus providing employers with strong offensive discovery tools they can use in defending against both single-plaintiff and class action claims alike. Moreover, the decision underscores that in today's digital world, where individuals who are plaintiffs in litigation create and control a wealth of electronic data - personal computers, PDAs, personal email accounts, social networking sites and blogs, including professional networking sites like LinkedIn - the refrain of yesteryear that individuals do not possess any relevant electronically stored information ("ESI") in traditional "asymmetrical" employment cases rings hollow.

Factual Background

The EEOC brought this sexual harassment class action lawsuit against The Original HoneyBaked Ham Company of Georgia, Inc. in September 2011, alleging that a male store manager harassed subordinate female employees. A group of allegedly aggrieved individuals ("claimant class members") asserted that as a result of sexual harassment and retaliation inflicted by their manager they suffered severe emotional and financial damages.

During the discovery process, it became apparent that the claimant class members had used text messages, email, and social media to discuss the case and their claims and to communicate amongst themselves regarding the lawsuit. Further, several class members posted pictures and comments directly related to the allegations in the case, such as statements about how stress-free their lives were or...