Employer, Anticipating Sexual Harassment Suit, Denied Pre-Lawsuit Discovery From Prospective Plaintiff’s “Facebook Friend”

In the recent case of Matter of John W. Danforth Group, Inc., the Western District of New York considered, and rejected, a company’s petition under Federal Rule of Civil Procedure 27 to perpetuate evidence in anticipation of an as-yet unfiled employment discrimination action against it.

Under limited circumstances, a potential party to litigation can obtain discovery before an action is commenced.  This is accomplished (in federal court) through FRCP 27. That rule provides a mechanism to “perpetuate” testimony where the requester “expects to be a party to an action … but cannot presently bring it or cause it to be brought.”

Here, the company claimed that it anticipated being named as a defendant in an employment discrimination (sexual harassment and retaliation) lawsuit by a former female employee, based on its being named in an Equal Employment Opportunity Commission (EEOC) charge.

The instant petition arises from the refusal of one of the prospective plaintiff’s co-workers to participate in the company’s pre-litigation investigation:

As alleged in the current petition, upon receipt of the EEOC complaint, Petitioner undertook to preserve evidence relevant to the allegations therein and, through counsel, interview potential employee witnesses. Each known witness was issued a “litigation hold letter,” informing him or her of a duty to prevent the deletion or destruction of any potentially relevant information. One such witness, a male coworker allegedly present during some of the challenged conduct, indicated during an interview with counsel that he socialized with the EEOC complainant outside of work and communicated with her on his personal mobile phone. In a later interview, the coworker answered that he did not utilize any social media websites, a fact Petitioner knew to be false based on a prior discovery that the coworker and the complainant “were Facebook friends.”

Petitioner also arranged for backups of employees’ computers and mobile devices, both company-owned and personal, to be made in order to preserve any relevant electronically stored information, or “ESI”, on those devices. The coworker complied with the request for his company computer, but refused to turn over his personal mobile phone or allow for a backup of that device to be made. The coworker informed Petitioner “that the only way he would provide a backup of his personal mobile device(s) was if a court order required him to do so.”

As a result of this refusal, Petitioner requests that this Court order the coworker to provide Petitioner with all of the personal mobile devices utilized by him to communicate with the complainant or, alternatively, provide Petitioner with a forensic image of such devices. Petitioner argues that “it is reasonable to conclude that [the coworker] used his personal mobile device(s) to exchange text messages or emails, or communicate via social media using his personal mobile device concerning the allegations found in [the] EEOC Complaint.” Further, based on the coworker’s misrepresentations “concerning his interactions and communications with [the EEOC complainant], particularly with regard to Facebook[,] . . . there is an imminent concern that [the coworker] may delete or destroy potentially relevant information contained on his personal mobile device(s).” Accordingly, Petitioner asserts that the Rule 27 order is necessary in order to prevent a failure or delay of justice.

Initially, the court determined that Rule 27’s preliminary requirements were met:

[T]he EEOC complaint establishes a likelihood that Petitioner will be named a party in a Title VII action, over which federal courts have jurisdiction. Further, Petitioner, as the defendant, cannot cause the action to be brought, particularly where the complainant herself cannot commence the action until she receives a right to sue letter from the EEOC.

It nevertheless held that the petitioner “failed to establish that this order is necessary in order to prevent a failure or delay of justice.” It began by explaining the rule’s limited applicability and particularity requirement:

Rule 27 was enacted to provide parties with an equitable means to preserve evidence that would otherwise be destroyed, not a short-cut to full discovery. In contrast to the broad post-complaint discovery available under Rule 26, relief under Rule 27 should be granted only in special circumstances to preserve evidence that would otherwise be lost. Thus, courts require that a petitioner must make a particularized showing that intervention prior to commencement of an action is necessary to preserve the subject evidence.

The court gave several examples of situations in which the rule would apply, namely: geographical or jurisdictional constraints; a deponent’s advanced age or illness; actual destruction of evidence; an unfavorable medical prognosis for an injured witness; a situation where potential witnesses were foreign nationals whose departure from the country was imminent; and a situation where a company routinely destroys the requested data on a set schedule in the ordinary course of business.

Here, petitioner’s “concern that the coworker might delete or otherwise destroy data on his mobile phone or phones” fell into the category of “generalized statements of concern that requested evidence might be destroyed” which “are insufficient to warrant pre-complaint intervention.”  In particular:

Even considering the coworker’s alleged misrepresentation, this speculation is insufficient to warrant pre-action intervention under Rule 27, particularly where Petitioner admits that the coworker stated that he would allow a backup of his mobile device(s) to be made if a court order required him to do so. Moreover, given that mistrust is common in the anticipation of any litigation, to grant relief on mere generalized concerns could impermissibly widen the scope of Rule 27’s limited application.

The court therefore denied the company’s Rule 27 petition.

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