A recent ruling by a Pennsylvania state court denied a defendant’s request for plaintiffs’ social media records. In Hoy v. Holmes, case no.: S-57-12, plaintiffs sued defendant for damages arising from an automobile accident. Defendant sought and later moved to compel production of the plaintiffs’ social media records. The court denied defendant’s motion without prejudice, finding that there was no factual predicate to support a request for these documents.
Last week, the ABA issued an opinion judges’ use of social media sites such as Twitter, Facebook and LinkedIn. While the opinion acknowledges judges can and should use social networking sites, the opinion cautions judges to be sure that their online actions do not suggest they are not impartial. However the opinion does not necessarily require judges to disclose a social media connection, instead cautioning the judiciary to consider whether the connection must be disclosed.
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.
Monday’s DBR featured an article about social media and the evidence that it might create. Social media is proving to be a hot source for evidence in litigation. My partner, Jason Marks, previously blogged about using social media in the family law context on the Kluger Kaplan blog. But what about social media and commercial litigation?
There are two general areas where evidence may exist in the social media context – the company’s social media pages and in the pages of its employees. For example, a business may have its own Facebook page, Twitter handle, a LinkedIn profile and perhaps an Instagram or Pinterest account. In addition, each employee, at all levels of the business, is likely active on at least one or more of those social media outlets.
It is not new advice that content posted on Facebook, Twitter and other online forums is open to the whole world to see. Nor is it a secret that such public postings are discoverable. For example at the end of last month, a Manhattan judge ordered Twitter to release the private tweets of an Occupy Wall Street protester in an ongoing criminal investigation, highlighting a new trend – courts are reluctant to recognize privacy rights when an individual posts his or her thoughts in a public forum.