Labor & Employment Law Daily Was noose incident hostile or ‘consensual banter’? Review of cell phone video, social media posts ordered
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Wednesday, December 19, 2018

Was noose incident hostile or ‘consensual banter’? Review of cell phone video, social media posts ordered

By Marjorie Johnson, J.D.

In a Title VII race discrimination lawsuit brought by a black employee who produced a video from his cell phone depicting a coworker’s display of a lynching noose, which the employer disputed as being “merely a snippet” of a longer video which would have cast the incident in a non-discriminatory light, the parties were ordered to prepare a protocol whereby a neutral expert would examine the phone and provide recoverable data that was relevant and non-privileged. Ruling on both parties’ pre-trial discovery motions, a federal magistrate judge in Louisiana also ordered the employee to respond to certain production requests seeking information relevant to the relationship between the employee and a coworker, which was crucial to determining whether the incident was “hostile and threatening” as the employee contended, or part of “non-threatening, consensual banter.” This included information from the employee’s social media and email accounts (Lewis v. Archer Daniels Midland Co., December 14, 2018, Wilkinson, J.).

Noose incident was key. While courts have been hesitant to authorize direct access to an opposing party’s electronic storage device, they have permitted “restrained and orderly examinations of computers and other electronic information storage devices, including by neutral expert examiners, when the moving party has sufficiently demonstrated need and inability to obtain relevant information by more conventional means and measures adequate to protect the privacy or commercial concerns of the party who owns the device are imposed.” Here, the employer demonstrated that the information on the employee’s cell phone was extremely relevant to the lawsuit as the video of the noose incident was key evidence.

Significantly, the coworker testified that the brief video excerpt that the employee produced was “merely a snippet” of a much longer video that would show, along with the history of text messages him and the employee, that the incident was “a small part of a long running, joking, non-harassing—albeit wrongheaded—race-based exchange between the coworkers.” The employee disputed that a longer video was on the phone.

Further examination necessary. If the coworker’s testimony were deemed credible and the alleged longer video existed but was not recovered, it would be possible that the video produced to date would not be admissible at trial. Yet any photo/video evidence and metadata relating to the incident and the relationship between the coworker and the employee (if they existed) would likely be discovered via forensic examination of the phone. Moreover, the employer’s previous attempt to access the data on the phone failed when the employee could not provide its SIM card or recall its passcode. Thus, the employer demonstrated that it would be unable to obtain this relevant information unless a proper expert examination was conducted.

Agreed to neutral expert. The parties had already conducted telephone conferences with the court and mutually recognized the benefit that neutral examination of the cell phone would provide “to the truth-seeking process in this case.” They had agreed that a neutral expert was the best (and maybe only) available resource for the technology potentially needed to access the phone. They also agreed that further efforts to determine the correct passcode should be conducted before resorting to a riskier, more expensive passcode bypass procedure. Accordingly, the court ordered them to continue to complete an agreed-upon protocol which would provide means by which (a) the cell phone would be provided to the neutral expert; (b) relevant, recoverable data would be recovered and produced, while irrelevant and/or privileged information would be segregated, logged and withheld; and (c) both parties’ attorneys and/or experts would receive and review the recovered data. Additionally, all fees and costs associated with the examination would be split equally between the parties.

Social media and email accounts. The court also ordered the employee to produce relevant, non-privileged information responsive to four of the employer’s requests for productions, including information from the employee’s social media and email accounts. Placing the noose video in context in terms of the relationship between the employee and the coworker was crucial to determining its true nature either as hostile and threatening or part of a “non-threatening, consensual banter between the two coworkers.” However, the court denied the employer’s bid to depose the employee’s lawyer regarding the handling of the employee’s cell phone and any potential tampering with the phone’s data.

Some information may become duplicative. The court also denied the employer’s motion insofar as it sought the employee’s supplemental deposition testimony; to produce all data that has been collected, sent, received, derived or extracted from the employee’s cell phone; to produce information regarding how and when that data was obtained; and to produce all contact information of anyone having care, custody, control, access to or use of the employee’s cell phone since the noose incident. Such production may be “unnecessary and unreasonably cumulative or duplicative” in light of the agreed upon cell phone examination procedures that would be set forth in their protocol.

However, if the protocol procedures failed to provide relevant information, the employer retained the right to file a new motion geared to specifically identified discovery requests. The court also denied the employer’s bid for attorney’s fees and expenses since the employee’s opposition to its request that the cell phone should again be submitted to its retained expert for another attempt to access its data was well-founded. Thus, both sides should bear their own costs.

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