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Originally published in The Legal Intelligencer, May
16, 2012
By now, most litigators have bumped up against at least one or
two social media issues in their practices. Social media has become
a hot-button discovery issue and a potential source of valuable
information in cases from personal injury to employment
discrimination. Often, social media discovery requests are now
included as a matter of course in individual plaintiff cases.
Juries are using social media to broadcast, often improperly, about
their cases while lawyers scour social media during voir dire
looking for juror bias. Companies now frequently use social media
to vet applicants, with some even going so far as to force
applicants to permit company employees to access their various
social media sites.
With Facebook expected to hit the 1 billion user mark in August
and more than half of Americans using at least one social media
platform, the importance of social media in business and everyday
life will only increase. In-house counsel have no real choice but
to become familiar with the various social media platforms, the
issues these platforms create for their companies, and the pitfalls
and advantages they present in management and litigation.
To that end, here is a way that counsel can use social media to
their advantage.
Investigating and Defending Claims
Social media websites can provide extremely helpful evidence to
employers in both investigating and defending claims of harassment
brought by employees. For example, when the employer receives a
claim of co-worker harassment, it should consider reviewing the
social media of the alleged harasser as part of its investigation.
If the social media provides evidence that the harassment did in
fact occur (which it can and often does), the employer can use that
information to discipline the employee as part of its remedial
actions in an effort to ensure that the harassment ends. Whether or
not evidence of harassment is found, the fact that the employer
used this avenue of investigation can help, in the event that the
employee brings suit, in establishing that the employer took prompt
and effective remedial action.
An investigation of a claimant's social media can also
provide very helpful evidence in defending against such a claim.
For example, if the alleged harasser and victim are
"friends" on Facebook, their communications can often
reveal whether any allegedly harassing conduct was, in actuality,
welcomed and reciprocated. Social media can also provide evidence
useful in defending against damages resulting from claims of
emotional distress, as users will often post about traumatic events
that may have predated the alleged harassment.
Often, an employer will not be able to access all of a
claimant's social media freely. Most users keep some or all of
their social media postings private and require people to be
invited or "friended" before they can view all of the
postings. In certain cases, however, a plaintiff can be compelled
to produce or provide access to information that has been kept
private via discovery.
At this time, most judges are reluctant to permit wide-ranging
discovery into a litigant's social media. Citing privacy
concerns, many judges consider such information nondiscoverable
without a showing of relevancy by the party seeking the
information. So how can this information be obtained?
First, the party seeking the information should ask pertinent
questions during the deposition process to determine if the
information may be relevant. Ask whether the party has ever
discussed the case, injuries, facts or parties online or posted
about them on social media. Ask whether the party has discussed
other jobs that might have a bearing on damages. Ask if the party
has connected with any other people involved in the case. Probing a
litigant's social media profile in depositions will often
provide the answers necessary to access private postings.
If a party is unable to gain any useful admissions via
deposition, but still believes that the opposition's social
media would provide relevant information, the party should consider
proposing a compromise by which the information is provided on an
attorneys'-eyes-only basis or reviewed in camera for relevance
before being produced. Such an arrangement can help alleviate a
judge's concerns about the infringement on the litigant's
privacy.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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