The Employer Handbook Blog

An individual calls you; wants to sue a former employer. After getting answers to your list of who/what/when/where/why questions, you begin to think to yourself, "This one has real potential!"

So you start taking down the caller's information: name, address, telephone number, email, etc.

But did you remember to ask if the caller uses social media? Because, before you take on this potential client, you need to know what this person has published online. Just imagine if the potential client comes to you with claims of sexual harassment and, lo and behold, you find posted on the caller's wall on Facebook some the sickest, most perverted stuff upon which you have ever laid eyes ...and your potential client posted it!

Let's say you've satisfied yourself that your client doesn't curse like a sailor and brag about porn-star-exploits online. Then again, maybe you find some online information that indicates that your potential client isn't Mother Theresa either.

Do you tell your client to delete it? No!

I, as defense counsel, will argue that once the potential client called you to pursue claims, there arose a reasonable anticipation of litigation. And once a reasonable anticipation of litigation arises, a party has an affirmative obligation to retain relevant paper and electronically stored information. Do not delete it.

So what do you do? Simple. Tell your potential client to adjust online privacy settings. Does that mean that defense counsel won't be able to obtain social media information about this person during discovery? No, but it will put a hitch in defense counsel's early litigation due diligence and case assessment.

As part of my practice, I provide anti-harassment training to employers. When I give that training, among other things, I emphasize the risks of improper use of social media. Does everyone listen to me? I'd like to think so, but probably not.

So when you're preparing a Charge of Discrimination or a complaint, you need to check up on the harasser's social media use. (I do this when I receive your client's Charge or complaint). Don't have access to the harasser's Facebook page? Maybe your client does or maybe one of your client's friends/co-workers does. Without violating any ethical rules, try to arrange for that person to print copies of pictures, wall posts, and other online content. It may come in handy later on.

Use social media to build your case pre-discovery.

Let's say your client claims gender discrimination, but the employer alleges it fired your client due to tardiness, poor work performance, and bad leadership skills. How can you help break the tie on this "he said/she said"?

LinkedIn.

If your client has a LinkedIn account and is "connected" to a former supervisor, maybe that former supervisor left a recommendation for your client that reads, "Jane is a great worker. She shows up on time. She can handle herself with minimal supervision. Jane is also a great leader..."

Sounds to me like we may have some pretext here.

Now send a letter to the employer. Put the employer on notice that your client is bringing suit. Make sure you include some litigation hold language and emphasize that the litigation hold includes social media content, specifying particular relevant employees.

Parenthetically, I don't see how an employer has an obligation to preserve information that an employee may post online without its knowledge. However, if you put the employer on notice that this information does or reasonably may exist, that duty to preserve should attach.

Oftentimes, it may be difficult to ascertain what some of the critical players in your client's lawsuit have published online. That's what discovery is for. Here are some quick, easy steps to obtain this information.

• Take advantage of your "meet and confer" / scheduling conference. Make certain that the defendants have taken necessary steps to preserve relevant online information and will produce it during discovery.
  
  
• Request all online references to the plaintiff or the subject matter of the Complaint. The latter is fair game. On the surface, a request for references to the plaintiff may sound burdensome but, realistically, how often should the defendant and its agents be posting information about your client online? Not much.
  
  
• Request copies of the employer's policies. Get the company's Anti-Harassment, Acceptable [Computer] Use, Social Media, and Document Retention Policies. Also, get a copy of the litigation hold letter that the defendant [hopefully] issued when you sent that first nasty-gram threatening litigation.
  
  
• Find out who uses social media. Then check them out online.
  
  
• Subpoena social-media sites and third-parties as needed. My last post has the tools you'll need to get this done.
  
  
• Take the right depositions. Don't just depose the harasser / decision-maker. Depose the defendant's IT manager. Find out what safeguards were put into place to make sure that relevant information didn't somehow disappear.
  
  
• Set a trap. Request impeachment material. At his deposition, the harasser claimed he was a saint. Oh, is he now? Ask for his social media content that suggests otherwise (questionable pictures, obscenities, off-color remarks). Hopefully, you've already made copies of the most damning information during your pre-litigation due diligence, so you've already caught him in a lie. But, if the same information isn't produced in discovery, now you've got spoliation. In fact, if any relevant information has gone missing, consider a spoliation motion.

You'll just have to stay tuned for a future post...