Federal Judge Rules That Facebook Posts for 87 Flsa Opt-Ins Are Not Discoverable

In a recent decision from Judge Totenberg for the Northern District of Georgia, Jewell v. Aaron’s, Inc., 2013 U.S. Dist. LEXIS 102182 (N.D. Ga. July 19, 2013) the Court held that social media posts for 87 employees that opted into a Fair Labor Standards Act (“FLSA”) 29 U.S.C. § 216(b) collective action were not discoverable.

The case, which was originally filed in the Northern District of Ohio, seeks to recover unpaid overtime compensation on behalf of employees for time spent working during meal breaks. The employees allege that their employer, a retailer that leases and sells furniture, electronics, appliances, and computers, automatically deducted 30 minutes from their pay for meal breaks without regard to whether they were working. The collective action consists of non-exempt account managers, manager trainees, sales managers, customer service representatives, and product technicians.

In discovery, Defendant sought the broad production from 87 of the FLSA opt-ins of any social networking activity made during work hours, specifically any “Facebook, MySpace, LinkedIn, Twitter” or blog postings.

Defendant’s purported rationale for this request was that such evidence would demonstrate that the employees were not too busy to take breaks. However, the Court was not persuaded by the defendant’s rationale, stating that “Defendant has not made a sufficient predicate showing that the broad nature of material it seeks is reasonably calculated to lead to the discovery of admissible evidence.” Even though there was evidence that the named plaintiff often made Facebook posts during work hours, the Court nonetheless stated that “such activity does not persuade the Court that the Facebook postings will show, contrary to Plaintiffs’ claims, that they were not forced to work through their meal periods.”

This decision is important because it addresses the problem presented by overly broad discovery requests that request personal information, such as social networking posts, from employees in FLSA overtime cases. The Court’s opinion correctly recognizes that requests for such information amount to no more than a “proverbial fishing expedition” which have no direct relevance to an employee’s FLSA overtime case.

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