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Posted: August 19, 2011

Social media goes to court

The information superhighway can lead to an evidentiary goldmine

Troy Rackham, John Balitis and Carrie Pixler-Ryerson

When litigating against a former employee, the information superhighway can lead to an evidentiary goldmine for an employer. A former employee's social media activity may provide evidence of the employee's breaches, such as a violation of a non-competition provision or breach of confidentiality.

Indeed, by mining a litigant's online presence, lawyers can obtain information about a litigant in a case that the lawyer used to have to hire a private investigator to get. For example, a lawyer may be able to obtain a video, posted on YouTube, showing a litigant windsurfing. That video would be valuable in a case where the litigant claims to be permanently and totally disabled.

Similarly, a lawyer can obtain information about a litigant's age, relationship status, family, sexual orientation, and friends; information that formerly was difficult if not impossible to obtain. Consequently, employers and employees alike must be aware of the potential that otherwise innocuous posts may be used as evidence in a court of law.

Indeed, courts have addressed the litigation strategy of discovering evidence in an employee's communications in cyberspace. Two recent cases make clear that emerging law tends to favor an employer's ability to tap into an employee's social media space as another litigation tool.

In Indiana, the Equal Employment Opportunity Commission (EEOC) filed a sexual harassment suit on behalf of several employees who claimed emotional distress resulting from the alleged wrongdoing. As part of its defense, the employer sought to discover information from the plaintiffs' Internet social networking site profiles and other communication from their Facebook and MySpace accounts. The court decided that this information was discoverable by the employer because the plaintiffs already had shared the information with at least one other person through private messages and perhaps a larger number of people through postings.

Similarly, in New York, the court rejected an employee's assertion that her social media activity was private and could not come out as part of the lawsuit. She had sued her employer claiming discrimination based upon her disability. The employer sought to use her Facebook content as evidence that she was not disabled at all. Rejecting plaintiff's privacy concerns, the court explained that there is no right to privacy in social media content, adding that when a person chooses to disclose information on a social media site, this act of sharing such information weakens her ability later to claim that information is protected by privacy.

Even if not considered private, how can it be that an employee's entire social networking site activity is relevant to his specific claims in a lawsuit? An Indiana federal court answered this question in a situation where the employer sought access to its employee's entire body of social networking activity on Facebook and MySpace to seek evidence about the employee's emotional distress claim.

The court determined all of the employee's social networking activity must be turned over to the employer including any profiles, postings, or messages, status updates, wall comments, causes joined, groups joined, activity streams, and blog entries that reveal, refer, or relate to any emotion, feeling, or mental state. Although the courts' recent actions show a general favoring for the employer when it comes to discovery of employees' social media activity during a lawsuit, employers would be wise to watch their own social media activity.

The impact of social media in trials reaches across the courtroom to everyone involved in the litigation, including the employer's agents and key witnesses. Accordingly, employers should view the courts' rulings on social media as a premonition and make sure their own organization is in order with the appropriate social media protocol and policies.
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Troy Rackham holds the highest rating awarded by Martindale-Hubbell® Law Directory as an AV® PreeminentTM Lawyer. Selected as a "Rising Star" by Colorado Super Lawyers in 2009, 2010 and 2011. His practice includes employment and civil rights law, legal and medical malpractice and other forms of complex litigation. Reach Mr. Rackham at .

John Balitis practices in the labor and employment area with Fennemore Craig representing employers in arbitration, litigation and administrative proceedings.  He can be reached at mail to: .

Carrie Pixler-Ryerson practices in the area of appeals as well as in labor and employment at Fennemore Craig.  She can be reached at  mail to:



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