How Facebook Can Make Or Break Your Case

Facebook has over 400 million active users.

Twitter users are, in total, tweeting an average of 55 million tweets a day.

If an employee files suit against your client, what are the odds the employee uses social media? I’d say they’re pretty good.

Any information that employee has made publicly available, I’m printing it. I save any pictures the employee has published online and I send a list of the employee’s friends to my employer-client to cross-check against a list of current and former employees. (I do this because, generally, a Facebook user will allow friends greater access to online content).

Why do I want this information? Because many social media users do not filter what they publish online. They find social media cathartic. So, for every couple of banal “I’m going to the movies with John tonight” online posts, you’ll find an “I just had the worst day in the office because…” post.

Don’t believe me? Check out this, this, this, and this blog post from Delaware labor and employment attorney Molly DiBianca, who writes about how a waitress lost her job for a complaint made on Facebook.

Recently, in EEOC v. Simply Storage Management, a federal court permitted an employer to obtain discovery of an employee’s social networking activity that, through privacy settings, the employee had made “private” and not available to the general public.

That makes sense, right? I have yet to see a “tweet” or a Facebook status update appear on a privilege log.

So, as part of discovery, an employer should consider requesting:

All online profiles, postings, messages (including, without limitation, tweets, replies, retweets, direct messages, status updates, wall comments, groups joined, activity streams, and blog entries), photographs, videos, and online communications that:

1. refer or relate to the allegations set forth in the Complaint;
2. refer or relate to any facts or defenses raised in the Answer;
3. reveal, refer or relate to any emotion, feeling or mental state; or
4. reveal, refer or relate to events that could reasonably be expected to produce a significant emotion, feeling or mental state.

If the responding employee no longer has access to responsive information, then go right to the source with a subpoena. To guide you, here is a list of Internet Service Provider mailing addresses for service of subpoenas. (Just be prepared to pay some hefty fees, such as those Facebook charges for processing a third-party subpoena). And make sure you obtain a written consent (such as this one from LinkedIn) from the employee. For, as labor and employment attorney John Hyman explains in a recent blog post, many social networking sites use The Stored Communications Act, 18 U.S.C. § 2701 et seq., to aggressively protect the privacy of user content.

Suppose, however, the subpoena to the social networking site fails; try the plaintiff’s online friends. Each Facebook user has a “Wall.” Facebook users can post content, like photos, videos, and notes, to their own Wall and, usually, to a friend’s Wall. Facebook’s “Wall-to-Wall” feature allows you to see the history of Wall posts between two people. You can imagine, then, how this could come in handy during the course of litigation. Many Facebook users communicate Wall-to-Wall much as they would face-to-face.

If all else fails and you know that the plaintiff-employee is a Facebook user who has published online content relevant to the litigation, then you may have a good spoliation argument. Recently, Judge Shira A. Scheindlin of the Southern District of New York sanctioned 13 plaintiffs who failed to act diligently and search thoroughly at the time they reasonably anticipated litigation. According to Judge Scheindlin, a recognized leader in e-discovery jurisprudence, writing in Pension Comm. of Univ. of Montreal Pension Plan v. Bank of Am. Secs., LLC:

[T]he courts have a right to expect that litigants and counsel will take the necessary steps to ensure that relevant records are preserved when litigation is reasonably anticipated, and that such records are collected, reviewed, and produced to the opposing party.

Get with the times.

If your client is sued by an individual and you are not harnessing the power of social media as part of your litigation strategy, you’re making a BIG mistake.