It should come as no surprise by now that content posted on Facebook, Twitter and other online forums is open for the whole world to read. Nor is it a secret that such public postings are discoverable in the court of law. 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, only further underscoring what has become a new trend whereby courts are reluctant to recognize privacy rights when an individual posts his or her thoughts in a public forum.
Most of us have friends who feel it necessary to publicize every detail of their personal lives on Facebook – including taking jabs at their soon-to-be-ex spouses. But can taking a pop shot at your ex-to-be negatively impact the outcome of your divorce?
On July 1, 2012, Kluger Kaplan launched a blog and revamped its social media presence. A year later, I took a few moments to reflect on how the ever-changing landscape of social media has helped our firm grow its business.
Although Kluger Kaplan opened its doors in 2009 as a new firm focusing on complex commercial litigation disputes, our membership is composed primarily of veteran lawyers who began practicing law long before the days of Facebook, Twitter and WestlawNext. But building the Kluger Kaplan brand was a new experience for many of us who had found legal success through grassroots marketing efforts.
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.