In a recent case from the U.S. District Court for the District of Colorado, a judge has taken the unusual step of requiring the plaintiffs in an employment discrimination case to provide their passwords to Facebook and other social media accounts to their former employer. The employer argued that the information posted on these Facebook accounts was relevant to the plaintiffs’ claims of emotional distress. One of the plaintiffs had posted on Facebook information about her emotional state after losing a pet and ending a relationship. In granting the employer’s motion to compel the production of this information, the court reasoned thus:
“As a general matter, I view this content logically as though each [plaintiff] had a file folder titled ‘Everything About Me,’ which they have voluntarily shared with others . . . . If there are documents in this folder that contain information that is relevant or may lead to the discovery of admissible evidence relating to this lawsuit, the presumption is that it should be produced. The fact that it exists in cyberspace on an electronic device is a logistical and, perhaps, financial problem, but not a circumstance that removes the information from accessibility by a party opponent in litigation.”
In our view, this is bad precedent. It will encourage employers here in New Jersey to make these same types of invasive requests of their former employees. Although the courts of New Jersey may decide this issue differently for now, we have made it a practice to counsel our clients to avoid using Facebook and social media if they have employment cases in litigation.