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In a recent case, the EEOC alleged that the defendant’s manager sexually harassed a number of female employees and the company terminated at least one of them after she complained.  The company sought discovery of the employees’ social media accounts to discover statements made by the employees, including statements made after termination, statements pertaining to damages they were seeking, statements relevant to the employees’ actions and other topics.  The Court instituted sanctions against the EEOC for actions that, while not in bad faith, delayed and made discovery of this information more cumbersome.  Procedurally, the court utilized its power to control its docket under Federal Rule of Civil Procedure 16, rather than the more common sanction rules that require a bad faith finding.  More and more courts are finding social media posts, on facebook, twitter and the like, relevant and discoverable in litigation.  Taking unreasonable actions in relation to such materials can have the same impact on one’s case as withholding, destroying, or taking unreasonable actions with respect to tangible documents.  You can read the opinion here.

 

 

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