By now, hopefully, you’ve read my post “How Facebook Can Make Or Break Your Case.” I wrote it primarily for my fellow members of the defense bar. So, if you haven’t yet read it, and you generally represent employers, shame on you! Stop reading this and go read it now. RIGHT NOW!
Otherwise, keep reading this post to see what plaintiffs’ lawyers
should be doing with social media to help advance their clients cases.
(Otherwise, I will..)
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
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
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
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
- 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
how can proactive employers protect themselves?
You’ll just have to stay tuned for a future post…