Nov. 20, 2012 at 1:47 PM ET
A group of women suing their employer for sexual harassment must turn over their Facebook passwords so that a court-appointed forensic expert can review what the women said about the case on the social network, a judge has ruled.
The suit, brought by the Equal Opportunity Commission and 20 to 22 women who worked at the Original HoneyBaked Ham Co. of Georgia, has been winding its way through U.S. district court for just over a year.
Wendy Cabrera, a manager at the Highlands Ranch, Colorado store, and other female workers "suffered from repeat and offensive unwanted sexual comments, innuendos, and physical touching by their regional manager despite frequent protests," the EEOC contends, adding that "a number of the women were disciplined or discharged by the company for complaining up the chain of command about the treatment."
The company says the women shared their thoughts about the legal action and financial expectations from it on Facebook, as well as on cellphone text messages, and that that information should be disclosed, that is fully "discoverable" material.
"That's an awful ruling," Justin Brookman, director of consumer privacy for the Center for Democracy & Technology, told NBC News. "Quite apart from the fact that it mandates the disclosure of all sorts of personal information that's not relevant to the suit, it's also ridiculous from a security perspective."
In the Nov. 7 order, Magistrate Judge Michael E. Hegarty wrote that the company has shown that lead plaintiff Cabrera posted information on Facebook about what she hoped to get out of the suit monetarily, a photograph of herself wearing a shirt with the word "C---":
... in large letters written across the front (a term that she alleges was used pejoratively against her, also alleging that such use offended her) 3; musings about her emotional state in having lost a beloved pet as well as having suffered a broken relationship 4; other writings addressing her positive outlook on how her life was post-termination 5; her self-described sexual aggressiveness 6; statements about actions she engaged in as a supervisor with Defendant (including terminating a woman who is a class member in this case); sexually amorous communications with other class members 7; her post-termination employment and income opportunities and financial condition; and other information.
The judge said he views "each of these categories as potentially relevant in this lawsuit. If all of this information was contained on pages filed in the 'Everything About Me' folder, it would need to be produced. Should the outcome be different because it is on one’s Facebook account? There is a strong argument that storing such information on Facebook and making it accessible to others presents an even stronger case for production, at least as it concerns any privacy objection."
Because the company had already obtained Cabrera's Facebook pages, and because those pages "contain a significant variety of relevant information, and further, that other employees posted relevant comments on this Facebook account, I agree that each class member’s social media content should be produced," Hegarty wrote.
The judge said he will appoint a forensic expert to act as a "special master" to review the information, that it will not be shared with the company for right now.
To be turned over to the "special master": The plaintiffs' cellphones that were used to "send or receive text messages from Jan. 1, 2009 to the present," as well as "all necessary information to access any social media websites" for the same time period," and any "necessary information to access any email account or web blog or similar/related electronically accessed Internet or remote location used for communicating with others or posting communications or pictures,"
For those who might think that the judge's ruling is too invasive, he wrote: "It was the claimants (or at least some of them) who, by their own volition, created relevant communications and shared them with others."
— Hat tip to Ars Technica