Let us turn to Jewell v. Aaron’s, Inc., No. 1:12–CV–0563–AT (N.D. Ga. July 19, 2013), for another social media discovery request. You know how we love to talk about such things.
The request at issue, to be served on a “randomly selected” set of 87 opt-in plaintiffs in the overtime/wage class action, was:
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.
At first glance, that seems like a relatively broad request, as it seeks production of all social media posts from 2009 to present. (In fact, the phrasing of the request, particularly its reference to activity “posted on any internet Web site,” suggests that all comments to blog posts, newspaper articles, or any other website in general would also be responsive to the request.). But note that it limits the request to posts made “during your working hours at an Aaron’s store.”
Might that make the request more palatable to the court?
In response to the Plaintiff’s objection to the request, the court noted as follows:
Plaintiff objects to the request as unduly burdensome because identifying, obtaining, and producing all statements posted on Facebook or other social media sites from 2009 to the present during work hours of all 87 sample opt-ins would be a “tedious and incredibly time-consuming task.” Plaintiff contends that responding to such a request would require Plaintiff’s counsel “to assist the opt-ins in making a day-by-day, hour-by-hour search of the websites, comparing the date and time of each posting with the schedule of workdays and hours to determine if they coincided.” By way of example, Plaintiff contends that Facebook does not contain a search function, Facebook posts do not contain a timestamp, and such information can only be obtained by “individually interacting with and clicking on each post.” As a result, Plaintiff “estimates” that such a task could require anywhere from 1,323 hours to 26,462 hours depending on the number of daily posts made by each opt-in plaintiff. Plaintiff offered no evidence to support these assertions.
The Court has attempted to verify the accuracy of Plaintiff’s assertions and the potential burden imposed by Defendant’s request. Facebook employs a feature that allows a user to download her Facebook data, including “timeline” information, “wall” postings, activity log, messages, and photographs directly from the website. Once downloaded, the user may view all posts/activity in a single document in chronological order with a date/time stamp.
Indeed. Defense counsel are catching onto this technique and sometimes asking Plaintiffs directly to download all of their Facebook data and produce it directly.
However, the Court didn’t buy it, noting that the “exemplar evidence” from the named Plaintiff “did not persuade [it] that the Facebook postings will show, contrary to Plaintiffs’ claims, that they were not forced to work through their meal periods,” which was apparently one of the issues raised in the case. In coming to that conclusion, the Court agreed with the 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.”
In the end, the Court found that the defendant’s justification was mere hope that they might uncover relevant evidence and that the burden imposed upon the opt-in plaintiffs would be too great.