United States: What's Not To Like? Using Social Media In Employment Litigation

Seyfarth Synopsis: Social media information—pictures, status updates, location markers, "likes," groups, and associated friends, all from the owner's perspective and documented in real time—can be a goldmine of information to defend employment lawsuits. Read on for thoughts on how to extract and refine this information, and what limits to observe in using it.

Social media and discovery is an area rife with potential drama: pictures of a plaintiff vacationing in Hawaii after he's called in sick? Yes, please! How and should we access such juicy information?

Litigation-related discovery of social media content is generally permissible. The main problem is that—both in formal discovery and in other forms of fact-finding—there isn't a complete picture on how far one can go to obtain it. Below are some tips to help employers stay in the friend-zone while using social media to their advantage in litigation.

Go Narrow! (At Least At First)

In a frequently cited case on the matter, Mailhoit v. Home Depot U.S.A. (C.D. Cal. 2012), the court debated how a defendant could use social media in litigation, and ultimately decided that there is a limited right to discover a party's social media content. Mailhoit allowed an employer to make "particularized requests"—in that case all social media communications between the plaintiff and her current or former co-workers in any way referring to the lawsuit. But Mailhot said the employer was not entitled to look through the entirety of the plaintiff's social media information in the hope of "concocting some inference about her state of mind," and refused to permit other proposed, broader, discovery requests.

But even this limited discovery can be important: once relevance is shown, courts may be more likely to permit additional discovery. Mailhoit suggested that if social media posts are relevant, additional discovery may proceed.

At least one non-California court has already taken this step. In Crowe v. Marquette Transportation Company Gulf-Inland, LLC (E.D. La. 2015), the court ordered an employee to produce an unredacted copy of his entire Facebook page, even though the employee protested that he had deactivated his account. The employer was even entitled to analyze his Facebook messages, which potentially contained a lot of useful information! If a California court can be persuaded that social media communications in some way relate to claims or defenses in the litigation, then they, too, may yield to discovery.

Private vs. Public: Gimme, Gimme!

We know that in California, since 2013, we cannot force employees or job applicants to turn over social media passwords. The California legislation on this point reflects a public policy that recognizes our unique constitutional right of privacy.

But what about publicly available information? California courts agree that there can be no expectation of privacy in publicly posted information on social media websites. See Moreno v. Hanford Sentinel, Inc. (Cal. App. 2009).

This means if the privacy setting on an employee's Facebook posts is "Public"(i.e., available to anyone on or off Facebook), then anything posted is fair game for discovery. The same goes for publicly available Twitter tweets, publicly available Instagram posts, publicly available LinkedIn info, MySpace page information, etc. Presumably, if someone publicly posts elsewhere (e.g., Reddit, 4Chan, personal blogs), with a link it to the poster's identity, then those posts may also be accessed and used.

Save, Save, Save!

Social media, like life itself, is evanescent. Publicly available, incredibly useful information can be here one day, gone the next. Do not rely on information staying up once it is up. To best preserve currently available information, screenshot the information, or print to .pdf. Then save and wait. It doesn't get much better than seeing the face of a plaintiff when confronted with a photo he thought he had deleted. You know the one: featuring the plaintiff himself, bleary eyed and hoisting a beer, an hour before his scheduled work shift. Or the one showing him wearing stolen merchandise. Or the one showing him partying it up while supposedly suffering from "emotional distress."

Fake-Friending and Professional Responsibility: Don't Be a 🙁

"Fake-friending" is when one creates a fake profile to add a person on Facebook or other social media with the aim of gaining full access to the person's more limited profile. Rules of professional responsibility for lawyers discourage this practice—(the American Bar Association has recognized at least four areas of concern: (1) confidentiality, (2) truthfulness in statements to others, (3) responsibility regarding non-lawyer assistants, and (4) misconduct). Conducting covert research through fake-friending may also violate California Rules of Professional Conduct, such as Rule 2-100, which forbids "communication with a represented party." Non-attorneys may be subject to similar ethical responsibilities. So leave intentional fake-friending out of your litigation arsenal.

Nonetheless, it is not always clear what the limits of these rules mean in practice. For example, would it be OK to accept the help of a third party who has access to shared information (for example, the plaintiff's co-worker, who has added the plaintiff as a friend online)?

The San Diego County Bar Association released an Opinion (2011-2), stating: represented "parties shouldn't have 'friends' like that and no one – represented or not, party or non-party – should be misled into accepting such a friendship." Specifically, the opinion states that if the motive is to obtain information about the litigation, then this conduct can violate Rule 2-100 and constitute deceptive conduct forbidden by the California Business and Professions Code.

Outside of California, other jurisdictions have found that it would be unethical even to ask a third person, whose name a hostile witness will not recognize, to obtain social media information, even if the person states only truthful information.

The Future of Social Media and Regulation: "It's Complicated"

New apps, social media websites, and ways to share information emerge every day. Unfortunately, the law and public policy often lag behind advances in technology. In some states, we're already seeing some peculiar stuff going on. In New York, courts have since 2013 held that some service via social media can satisfy due process. In one early case, Federal Trade Comm. v. PCCare247 Inc. (S.D.N.Y. Mar. 7, 2013), the court noted: "history teaches that, as technology advances and modes of communication progress, courts must be open to considering requests to authorize service via technological means of then-recent vintage, rather than dismissing them out of hand as novel." New York courts have also indicated that social media may be considered an effective means of providing notice to potential class members in class actions. See Mark v. Gawker Media, LLC (S.D.N.Y. 2016).

Workplace Solutions

If you find yourself in a pickle—"to like or not to like?", "to friend or not to friend?", "to snoop or not to snoop?"—remember that a friendly neighborhood attorney is just a poke away.

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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