Friday, July 26, 2013

Federal Court Denies Social Media Discovery Request - COTW #153

Today's Case of the Week addresses social media discovery in an FLSA collective action.

The case:
Jewell v. Aaron's, Inc., 2013 WL 3770837 (N.D. Ga. July 19, 2013).

The discovery request:
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, LinkedIn, Twitter, or a blog from 2009 to the present during your working hours at an Aaron's store.
The problem:
The case involved meal breaks, and the social media evidence requested may not even be relevant. "The Court agrees with Plaintiff that whether or not an opt-in plaintiff made a Facebook post during work may have no bearing on whether or not the opt-in plaintiff received a bona fide meal period as defined in 20 C.F.R. § 785.19."

The defendant did provide some examples, including a Facebook post from an employee who expressly stated that he was "on lunch." The defendant also hoped that it could cobble together 30 minutes of break time based on social media posts provided in response to their request.

It was not enough for the Court though. The Court noted:
[T]he burden of requiring all 87 opt-ins to review all of their postings on potentially multiple social networking sites over a four year period and match that information to their work schedules would be an extremely onerous and time-consuming task. Defendant acknowledges that the lunch hour of any sample opt-in is a potentially moving target.
The holding:
The Court denied Defendant's motion to approve its request for production.

See also: Court Denies Employer's Access to Social Media Posts in FLSA Collective Action and Sends Warning: If You Want Access to Social Media, Come with Both Barrels Loaded ... Leave the Water Gun at Home, by Sara Hutchins Jodka at Porter Wright. HT: Brian Hall via Twitter.