How NOT to Produce Facebook Evidence
Electronic discovery, the collection and production of electronic documents in litigation, is a scary thing to many lawyers. Some are so scared by it, in fact, that they just deny that it exists and continue to produce only hard-copy documents. Of course, that is a terrible idea. And not at all in compliance with the rules of procedure. But, alas, it is what it is.
There are times that a lawyer will want to produce electronic records, such as text messages, emails, and, heaven forbid, social-media content, but simply not know how to do it. I had an opposing counsel call me once and say that he was willing to produce his client’s relevant Facebook posts if I would show him how to do it. Ummmm, no.
My point, though, is that lawyers are ethically bound to understand and comply with the applicable e-discovery rules but, as a matter of practical reality, that does not mean that they comply. Which is why e-discovery continues to be a predominant subject for discussion in the legal profession.
A recent case from South Carolina gives a pretty good example of how not to produce electronically stored information (ESI). In Wellin v. Wellin, the defendants moved to compel the production of certain ESI, including emails, text messages, and Facebook posts in “native format.” (Native format means, in the most basic sense, that if it was originally in electronic form, you must produce it in electronic form, as opposed to paper form).
The plaintiffs apparently had attempted to produce the requested items but, instead of producing the responsive material in native format, they . . . [wait for it, wait for it] . . . :
printed out responsive emails and provided photocopies of certain portions of those emails to defendants. Additionally, [one plaintiff] provided the content of several text message exchanges and Facebook posts by transcribing those messages on loose-leaf paper.
The Court granted the motion to compel.
Initially, I assumed that the producing parties must have been acting pro se (without counsel) because there is just no way that a lawyer would produce text messages and Facebook posts that were “transcribed” on “loose-leaf paper.” Upon closer review of the opinion, though, it appears that all parties were represented. Clearly, I am missing something about the course of events that led a party to produce ESI in this “format” (is loose-leaf paper even considered a “format”?).
What matters, though, is that employers and their counsel be diligent in their efforts to preserve all potentially relevant evidence, including text messages and social-media content, and to preserve it in its original form (native format). Preservation is the first step. Maybe we can work on our production skills after that. I’ll keep my fingers crossed.
Wellin v. Wellin, No. 2:13-cv-1831-DCN, 2014 U.S. Dist. LEXIS 95027 (D.S.C. July 14, 2014).
A Reminder About Comp Time
It’s summer and that means it’s time for summer vacations. Some employers are unaware of the law regarding when an employee may be paid “comp time” instead of wages. So here’s a brief recap of what you should know.
Absent an exemption (see below), all employees must be paid at an overtime rate of 1.5 times the normal hourly rate for all hours worked in excess of 40.
This means that an employee who earns $20/hr. must be paid $30/hr for each hour worked over 40.
If the employee works 40 hours, he is paid $20 x 40 = $800. If he works 42 hours, he is paid $20 x 40 ($800) plus $30 x 2 ($60) as overtime compensation.
But he may not be paid his regular rate for the first 40 hours ($800) plus 2 hours of “comp time.” No, no, no. All time in excess of 40 must be paid (money in an amount equal to) 1.5 times the normal hourly rate.
Provided the employer complies with Rule #1, the employer may offer comp time as a supplemental form of wages.
One common example of this is paying comp time for hours 35-40. So, in addition to his regular wage of $800, the employee may also be paid 5 hours in comp time as an incentive or reward for working those last five hours. Similarly, some employers offer comp time for premium shifts.
Both scenarios are totally kosher, so long as the employee is receiving his regular wage. Comp time is a supplement not a substitute.
As with any rule, there are exceptions.
But, with comp time, the exceptions are few. An employer may pay an employee comp time in lieu of wages in certain situations. First, exempt employees (those who are not entitled to overtime in the first instance) can be paid comp time for time worked in excess of 40 in a week.
Second, certain public-sector employees may be paid comp time, including state and local government employers. In the public sector, under certain conditions, employees may receive compensatory time off at a rate of 1.5 hours for each overtime worked, instead of cash overtime pay.
Law enforcement, fire protection, and emergency response personnel and employees engaged in seasonal activities may accrue up to 480 hours of comp time; all other state and local government employees may accrue up to 240 hours.
There are exceptions to every rule. For example, some states do not permit the use of comp time or limit accrual to a lesser number than provided by federal law. Before you implement a comp-time system in your workplace, you should consider having it reviewed with legal counsel. And, if you have a comp-time system in place for non-exempt employees as a substitute for overtime pay, you should consider consulting with your employment lawyer to determine whether the system violates state or federal wage payment laws.
See also U.S. DOL Fact Sheet #7 State & Local Governments Under the FLSA
Other FLSA posts
Delaware Gov. to Sign Law Expanding Retaliation Protection for Whistleblowers
Delaware Gov. Jack Markell signed into law legislation that expands the protections provided to employee-whistleblowers. H.B. 300 extends whistleblower protections to employees who report noncompliance with the State’s campaign-contribution laws,who participate in an investigation or hearing regarding an alleged violation of the campaign-contribution laws, or who refuses to violate the campaign-contribution laws.
The practical effect of this new protection is limited, as it applies to a fairly narrow group of employees—those whose employer has some involvement in political fundraising. But it serves as an excellent reminder about the importance of preventing unlawful retaliation.
Retaliation claims continue to top the list of claims filed with the EEOC. Not only are they popular but they are some of the most successful for plaintiffs. The reason for its popularity and its success is the same—retaliation happens.
Thankfully, most of us are not targets of workplace discrimination based on our race, gender, or disability. But I’d challenge anyone to say that they’ve really never been the target of retaliation. If you made a critical comment about a co-worker in front of your boss, you were probably subject to retaliation by that co-worker. The retaliation could have been mild—maybe you don’t get invited to lunch that day. It could be more overt—maybe a flat-out refusal to help the next time you request assistance from the co-worker. Or it could be more covert—the coworker quietly (but intentionally) sows the seeds of poor performance with your boss, telling your boss every time you don’t make a meeting on time or leave early on a Friday.
All of these things constitute retaliation. But they’re not unlawful retaliation because they are not in response to you having engaged in a protected activity, such as reporting workplace discrimination or, now, refusing to violate the campaign-contribution law.
So, how can employers prevent unlawful retaliation? The key, in my opinion, is taking a step back. We’ve all had our feelings hurt when a co-worker points out an error in our work while the boss is standing there. But, the key is to take a step back, realize that you’re a rational, logical, thinking adult. And move on. No grudge holding. It makes life far more difficult than necessary.
U.S.S.C. Clarifies the Applicable Standard for Retaliation Claims
Manager's Drunk Facebook Post Leads to Retaliation Claim
3d Cir. Issues a Bitchin' Constructive Discharge Decision
Business Is Booming . . . for the EEOC, Anyway
- Jul 10, 2014 Waiver of Attorney-Client Privilege Via Facebook
- Jul 02, 2014 Delaware Gov. to Sign Law Expanding Retaliation Protection for Whistleblowers
- Jul 01, 2014 People First Language: Delaware Legislation Gets It Right
- Jun 22, 2014 Facebook Post Means No Unemployment Benefits for Nurse
- Jun 16, 2014 Jurors Behaving Badly
- Jun 11, 2014 Auto-Deduct Meal-Break Policies Live to See Another Day
- Jun 05, 2014 Calling Your Students "Hoes" Can (And Should) Get You Fired
- May 28, 2014 Are Your Employees Takers or Givers?
- May 20, 2014 Employers, If You Fire for a Facebook Post, Please, Get a Copy of It First!
- May 12, 2014 The Role of a Distracted-Driving Policy in a BYOD Workplace
- May 06, 2014 Delaware Joins the Ban-the-Box Bandwagon
- May 01, 2014 Yes, Employers, Words Really Do Matter
- Apr 23, 2014 Employment-Law Legislation In Delaware's General Assembly
- Apr 20, 2014 Hurt Feelings Do Not a Lawsuit Make . . . Even on Twitter
- Apr 14, 2014 Is It Time to Reconsider Your Personal Email Policy?
- Mar 31, 2014 Management Monday: Quit Oversharing
- Mar 25, 2014 Registration Now Open for Annual Employment Law Seminar
- Mar 21, 2014 Story of Delaware Medical Examiner Offers Lesson for Employers
- Mar 02, 2014 Father Learns a Costly Lesson about the Importance of Keeping Promises
- Feb 14, 2014 Chefs and Employment Law: A Valentine's Day Post
- Feb 12, 2014 Delaware Supreme Court Rules On Admissibility of Facebook Evidence
- Feb 06, 2014 Demoted for Posting Picture of Confederate Flag on Facebook Page
- Feb 03, 2014 Disruptive Facebook Posts Warrant Termination
- Jan 29, 2014 Survey of Chancery Court Cases Shows Most Litigants Obtain Expedited Relief
- Jan 27, 2014 Discovery and Preservation of Social Media Evidence