Last week I blogged about how social media is impacting businesses in litigation and discovery. This week, let’s look at the issue of employees and how their social media usage can impact discovery in litigation. The social media opportunities are seemingly endless: Facebook, Twitter, LinkedIn, Pinterest and Instagram, to name the biggest players. It is likely that most, if not all employees at a given company have an personal account with at least one or more of these services.
A variety of discoverable information may exist in an employee’s personal social media account. For example, in a dispute over commissions, an employee’s Facebook posts and Tweets may disclose information about the employee’s whereabouts that could support (or rebut) his claims against his employer. Or an employee may tweet, from his desk, confidential information about a company, such as a pending merger or upcoming layoffs.
There has been no shortage of articles about the dismal job market that recent law graduates are facing in South Florida. The consensus is that there are few jobs available for recent grads and that most firms are making lateral hires to avoid the time and costs associated with training new lawyers.
At Kluger Kaplan, we have taken a systematic approach to hiring which includes recruiting recent law grads. Our clients expect the very best from our firm, and we expect our associates to participate in every aspect of the litigation process. We hire first year associates so we can groom them from the outset to become high-quality trial lawyers consistent with our reputation.
Recently I found myself in multi-party mediations where parties on the other side were represented by one attorney. Problems arose when my client and I believed we settled the case only to find that the interests of the parties represented by joint counsel diverged, derailing the settlement in the process.
In this situation, an attorney can find himself or herself on one of two sides – 1) the attorney with two (or more) clients whose interests are no longer aligned, who now has a conflict issue, and 2) the attorney who thinks he or she settled the case for a client, only to find that circumstances outside the attorney’s control prevented resolution.
We have recently seen a rash of cases involving private equity firms’ or public companies’ purchases of closely held companies prior to the recession. Unfortunately, many of the acquired businesses did not survive the recession and the buyers—seeking to recoup some or all of their investment—then resorted to litigation. Many of these buyers have sued the sellers for fraud based claims. The grounds for the fraud claims vary, but generally the buyers claim the sellers failed to make proper disclosures regarding the acquired company’s financial health or related issues.
As litigators, it is our job to zealously advocate for our clients. But sometimes lawyers cross the fine line between barrister and bully. But that type of antagonistic behavior does not benefit the clients or the legal profession as a whole. I have built a successful practice based upon my relationship with other lawyers and I am proud to call many of the lawyers I work with my friends. So, it is important to me that my relationships with other lawyers remain civil, notwithstanding animosity between our clients.