Social Media in Litigation Part II

By January 24, 2013

By Steve Silverman
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.

If litigation arises out of those transactions, the employer would want to obtain discovery of all suspected employees’ social media accounts in order to determine the source of the leak; and the adverse party would likely seek that discovery too, but for different reasons.  Instagram, a photo-sharing website, can include all kinds of information about a workplace environment that may be relevant in varied types of litigation, including harassment claims, intellectual property disputes, and business breakups.
Depending on the number of employees and the number of companies involved in litigation, obtaining social media records can become extremely expensive.  Like all electronic discovery, social media content is not always controlled by the parties to the litigation, thereby requiring the party seeking such information to subpoena the provider.
By way of example, let’s look at Facebook’s policies. Facebook’s website clearly states that Facebook will not provide content from a Facebook page in response to a civil subpoena, relying on the Electronic Communications Privacy Act.
But Facebook will provide user identification in response to a subpoena.  Facebook provides a “Download Your Information” tool that allows litigants to download their account contents to produce in litigation.  It is unlikely that a litigant or third party will voluntarily produce that content without being compelled to do so, thus requiring the parties to spend time and money engaging in motion practice and hearings to determine entitlement to the account content.  If a party seeks social media content from more than one employee (either its own employees or employees of another party), the process can take months or longer to resolve.
The case law, though still developing, does not generally allow carte blanche access to social media content without some nexus to the issues in the case.  Like all discovery, social media content sought must be relevant to a claim or defense.  So, the best way to avoid costly discovery disputes stemming from your own employees’ actions might be to set policies now and enforce them.
Although employers cannot monitor their employees’ social media use entirely – even blocking the sites at work does not stop employees from accessing the sites on their personal mobile devices – employers can set certain policies and ground rules concerning social media.  It is a good idea, for example, to instruct all employees to refrain from discussing their employer and workplace events in their social media updates.  While it is now customary to include your place of work in a profile, specific information about day-to-day office interactions (i.e., “John thinks the receptionist’s skirts are too short” or “Mary really needs to stop coming into work hungover”) should be discouraged.  Although it may sometimes be difficult to police these activities, setting the tone for your employees about social media and the workplace may help to discourage social media content that is later discoverable.