We have written on a few occasions about how courts have viewed discoverability of social media posts and what might be a reasonable request for information contained on a social media site (see e.g. Can the Court Force You to Turn Over Your Facebook Account? The Short Answer. Yes). The Federal District Court, Northern District of Georgia, recently issued an interesting decision on this issue and it is worth a deeper dive.
Jewell v. Aaron’s, Inc., Case 1:12-cv-00563-AT (N. Dist. Ga, July 19, 2013), is a class action lawsuit involving claims that the defendant failed to provide breaks to its employees. The defendant requested social media posts from the opt-in plaintiffs, and the plaintiffs had refused to produce them. The request was laid out as follows:
Request for Production No. 4: All documents, statements, or any activity available that you posted on any internet Web site or Web page, including, but not limited to, Facebook, MySpace, Linkedln, Twitter, or a blog from 2009 to the present during your working hours at an Aaron’s store.
The defendant made the Request because it had received an anonymous tip that the named Plaintiff often made posts on Facebook during work hours. The discovery request was designed to find out whether and/or how many of the sample opt-in plaintiffs engaged in similar conduct.
The defendant provided the following rationale for its request:
[g]iven the prevalence of social media today and the ability to post on personal social media accounts and blogs from personal smart phones, it is likely that many of the opt-in plaintiffs have made posts … Some of the posts may directly show that the poster was taking a lunch break at the time. The date and time stamp of other posts may indicate that the poster spent a chunk of 30 minutes or more during the work day engaged in a series of successive personal posts such that there is a 30 minute period of that opt-in plaintiff’s work day that, regardless of whether the opt-in plaintiff actually ate a meal, is appropriately excluded from the compensable time of that opt-in plaintiff.
This seems like a fairly tailored request. It also appears that the defendant articulated a reasonable rationale for seeking the information given the known use of social media by employees during the work day. The plaintiffs, however, argued the Request was overly burdensome and that it would take 1,323 hours to 26,462 hours to locate and produce the information from the 87 opt-in Plaintiffs’ social media sites.
On review, the Court attempted to verify the accuracy of Plaintiffs’ assertions that it would take so much time and discovered a Facebook feature which permits users to “download Facebook data, including “timeline” information, “wall” postings, activity log, messages, and photographs” directly from Facebook. Following the download, the user can view all posts/activity in a single document in chronological order with a date/time stamp.
Seems like a pretty simply process – but the Court disagreed and refused to compel production of the social media posts. Given the Court’s analysis about the ability to download data from Facebook, I decided to investigate a little further myself to see how easy or difficult this process might be. I accessed my Facebook account, found the link to “download” my data and obtain an archive of my information. I started and completed the process in less than three minutes. Facebook is archiving my data as I write. As a result, I have to question Plaintiffs’ counsel’s assertions that it would take between 1,323 hours and 26,462 hours to download, review and produce the Facebook posts from only 87 people. I admit, however, that I have yet to receive an email notification that my archived data is available – so we will see.
That said, this Facebook feature should make it easier for litigants to gather and produce relevant information from Facebook, and might also decrease discovery costs – should other courts take a different view about the relevance of the data, and the ease with which the data can be collected. I can certainly see this issue coming up in employment litigation on a fairly regular basis, so we will keep our eyes open for other decisions on these issues.