George Patterson | Bloomberg Law While courts have dealt with the production of electronically stored information (ESI) in litigation for years,1 the increasing use of social media websites such as Facebook, Twitter, MySpace, YouTube and LinkedIn to facilitate communication among family, friends, colleagues, coworkers, acquaintances and businesses is dramatically changing the landscape of discovery in employment cases. The information and images litigants post on social networking websites before, during and after the commencement of a lawsuit often prove crucial to their claims and defenses. However, disputes over discovery of social media communications can result in protracted motion practice and present difficult ethical questions for attorneys.
Benefits of Social Media DiscoveryTo take just a few examples, consider an employee who sues claiming that his employer violated the Americans with Disabilities Act (ADA)2 or the Family and Medical Leave Act (FMLA)3 by denying his request for time off from work to attend to a medical condition. If the employee posted comments or images on a social networking site during the relevant time period showing that he was engaging in physical activity inconsistent with the need for leave, the employer may be able to show that it justifiably believed leave was unnecessary. Or, suppose an employee sues her employer for sexual harassment, claiming she experienced a hostile work environment based on offensive images or emails that were displayed or transmitted in the workplace. This employee would have a difficult time maintaining her claim if the employer obtains discovery showing that the employee frequently exchanged salacious content or comments with coworkers via Facebook. In yet another scenario, imagine an African-American employee sues his employer for race discrimination pursuant to Title VII of the Civil Rights Act of 1964 (Title VII),4 claiming that a white supervisor denied him a promotion and then offered the position to a less qualified white candidate. If, through discovery, the employee can demonstrate that the supervisor regularly accepted white subordinates as Facebook "friends" but rejected similar requests from minority employees, he might be able to raise an inference that discrimination was the true motivation for the supervisor's promotion decision. Alternatively, an employer might discover that its employees are posting negative commentary on Facebook or Twitter complaining about their working conditions. Although the employer may wish to discipline, or even terminate, these employees for harming the company's image, the National Labor Relations Board (NLRB) would likely consider this a violation of the National Labor Relations Act's (NLRA)5 prohibition on retaliating against employees who engage in concerted activity.6 Consequently, the employer would be well advised to conduct a careful internal investigation to review and evaluate the relevant social media postings and to determine the extent of corrective action it could take without violating federal labor law. Finally, consider an employer who brings suit against its employee for trade secret theft. If the employer regularly posts communications on trade networking sites to attract business and discloses content that includes aspects of its allegedly proprietary information, the employee might successfully argue that the material he is charged with misappropriating is not legally protectable. Before social networking became a nearly universal practice, the parties in each of the above hypothetical situations would have had to prove the pertinent facts through interrogatories, document productions, deposition testimony, subpoenas and other more traditional forms of discovery. These methods, however, often fail to demonstrate the parties' actions and intentions as definitively as postings on social media sites do. Accordingly, given the increased litigation value of social media communications, litigants should understand the need to avoid disclosing materials that can later prove harmful, how to identify and obtain relevant social media information from adversaries, and how to avoid ethical violations when dealing with social media. -Discovery by Deception or Coercion Social media raises ethical questions that differ from those encountered when dealing with more traditional forms of discovery, since information about an adverse party obtained through social media sites can often be discovered without the individual's consent or knowledge. In Pietrylo v. Hillstone Restaurant Group,7 the United States District Court for the District of New Jersey denied an employer's motion for judgment as a matter of law after a jury found the employer violated the federal Stored Communications Act (SCA)8 by accessing a MySpace discussion between several employees who were complaining about their working conditions. One of the employees who participated in the MySpace discussion stated that she gave her password to members of management solely because they were managers and she thought she "would have gotten in some sort of trouble." The jury found that the employer, through its managers, knowingly accessed a MySpace chat group and then the members' accounts and passwords without authorization on five occasions. The jury further found that the employer acted maliciously and that the plaintiffs were entitled to punitive damages. In denying the employer's post-verdict motion for judgment as a matter of law, the court determined that the jury could reasonably have inferred that the employee who "authorized" management to view the MySpace postings was pressured or coerced. An important lesson from the Pietrylo decision is that employers and their attorneys should avoid using deception or coercion to access an employee's social media communications. In particular, an employer should not attempt to "friend" an employee on Facebook by posing as someone the employee knows or by surreptitiously using one of the employee's friends as an intermediary to obtain information. State and city bar associations have begun to specifically address this issue by issuing ethics opinions identifying prohibited conduct, and have set forth limits on the means by which parties may obtain social media discovery. The Philadelphia Bar Association has indicated that an attorney may not access an adverse witness's Facebook or MySpace page by asking a third party to "friend" the witness, although the attorney may "friend" the witness if the attorney does not conceal his or her identity.9 Similarly, the New York State Bar Association determined that an attorney can access another party's social media site for potential impeachment material "as long as the party's profile is available to all members in the network and the lawyer neither 'friends' the other party nor directs someone else to do so."10 Thus, while the underlying information may be relevant and discoverable, employers and their counsel need to be aware of the ethical violations that can result from utilizing improper methods to obtain social media discovery. -Duty to Preserve One of the ethical obligations parties have when conducting discovery of social media is a responsibility to preserve electronic materials relevant to the claims or defenses in a case. If ethical obligations are insufficient to deter some litigants from destroying relevant ESI or letting it expire, the threat of punishing sanctions from a court may remind them of the seriousness of the duty to preserve. A leading case addressing the types of sanctions courts can impose against parties who fail to preserve ESI is Zubulake v. UBS Warburg, LLC.11 In Zubulake,an employee brought sex discrimination and retaliation claims against her employer, UBS, in the United States District Court for the Southern District of New York. After the defendant had received notice of the plaintiff's action, certain UBS employees deleted emails relevant to her claims, many of which could not be recovered. Moreover, UBS failed to retain "backup tapes" that its IT department used to store older emails. The court issued a series of rulings that have had important precedential value in subsequent e-discovery disputes and imposed several sanctions on UBS. The sanctions included an adverse inference instruction permitting the jury to decide that UBS destroyed the emails because they supported plaintiff's case; an order that UBS pay the costs of additional discovery needed to explore the information believed to have been in the emails; and a directive authorizing the plaintiff to use deposition testimony at trial from UBS employees demonstrating inconsistencies between the deposition testimony and the employees' prior statements in emails that were recovered after the depositions were taken. While the email evidence in Zubulake differs from social media communications in some respects, its potentially damaging impact and the context of the defendant's failure to preserve it raise issues that apply with equal force to materials shared on Facebook and Twitter. The Zubulake decisions and the cases that have followed make clear that parties cannot escape their duty to preserve ESI by simply claiming they mistakenly failed to appreciate the relevance of social media communications or inadvertently deleted or allowed them to expire. -Preference for Discoverability Notwithstanding the privacy issues that discovery of social media inevitably raises, most courts acknowledge the relevance of such information and the right of litigants to access it when the discovery request is reasonable. In EEOC v. Simply Storage Management, LLC,12 the claimants alleged that a supervisor subjected them to sexual harassment. The employer-defendant sought photographs, videos, postings and profiles from the claimants' Facebook and MySpace pages so that it could explore their mental health status and the Southern District of Indiana ruled that the materials were discoverable. The Equal Employment Opportunity Commission (EEOC), on behalf of the claimants, objected to the employer's discovery demands but the court explained that "[a]lthough privacy concerns may be germane to the question of whether requested discovery is burdensome or oppressive and whether it has been sought for a proper purpose in the litigation, a person's expectation and intent that her communications be maintained as private is not a legitimate basis for shielding those communications from discovery." The court also observed that, while the requesting party is not entitled to access all material on a site, merely locking a profile from public access does not prevent discovery. In addition, the court noted that a protective order could remedy many legitimate privacy concerns. Simply Storage Management is consistent with other decisions that have declined to recognize a specific right to privacy in social media content. In Romano v. Steelcase Inc.,13 a personal injury case, the defendant sought access to the plaintiff's current and historical Facebook and MySpace pages and accounts, including deleted pages and related information, on the ground that the plaintiff's postings contradicted her claim for loss of enjoyment of life. The New York Supreme Court noted that the SCA prohibited Facebook or MySpace from disclosing the requested information without the plaintiff's consent and ordered her to execute authorization forms granting the defendant access.14 After reviewing the public portions of the plaintiff's social media pages, which purportedly revealed an active lifestyle, the defendant sought to obtain information about the plaintiff's non-public social media content through discovery notices and during the plaintiff's deposition, but the plaintiff was uncooperative. As the court explained, "[t]o deny defendant an opportunity to access these sites not only would go against the liberal discovery policies of New York favoring pretrial disclosure, but would condone plaintiff's attempt to hide relevant information behind self-regulated privacy settings." Moreover, the court held that "as neither Facebook nor MySpace guarantee complete privacy, plaintiff has no legitimate reasonable expectation of privacy [in her social media postings]." While not an employment case, the principles from Romano are obviously relevant to the employment-related examples discussed earlier and suggest that the privacy settings users select on social media sites have little impact on the ultimate discoverability of the content. -Post-Termination Social Media Communications Employees have nevertheless successfully narrowed the scope of discoverable social media communications in some instances. The United States District Court for the District of Kansas recently held that an employer's request for discovery of a former employee's social media information was overly broad. InDebord v. Mercy Health System of Kansas, Inc.,15 an employee commented on Facebook after a supervisor inappropriately touched her and then complained to the employer's human resources department about the incident. The employer subsequently terminated the employee on the grounds that her Facebook posting contained false accusations of workplace harassment and that her behavior was disruptive and dishonest. The employee brought suit alleging sex discrimination and retaliation pursuant to Title VII and the employer demanded her Facebook data, including postings she made following her termination. The court held that the requested evidence lacked relevance because plaintiff's claims arose from her termination and any subsequent communications she engaged in could not have been the basis for her termination. The information, the court reasoned, "would include production of significant personal information which has nothing to do with the case. The court is simply not persuaded that the benefits of the proposed discovery outweigh the associated burdens and expenses, given the needs of the case." Rulings like Debord thus provide needed protections for employees against unduly invasive discovery requests and discourage employers from engaging in harassing tactics. -In Camera Review When a discovery request presents plausible arguments for both the disclosure and the confidentiality of social media content, courts have occasionally determined that the best option is for the judge to conduct an in camera review of the requested discovery. In cases involving Facebook, this may involve the judge becoming a Facebook "friend" of the party from whom the discovery is sought. In Barnes v. Cus Nashville, LLC,16 a personal injury case, the defendant moved to compel ESI, including the plaintiff's and other witness' Facebook photographs and emails. In granting the defendant's' motion, the magistrate judge explained that "to expedite further discovery regarding the photographs, their captions, and comments, the Magistrate Judge is willing to create a Facebook account. If [non-party witnesses] will accept the Magistrate Judge as a 'friend' on Facebook for the sole purpose of reviewing photographs and related comments in camera, he will promptly review and disseminate any relevant information to the parties. The Magistrate Judge will then close this Facebook account." While this solution has the benefit of balancing concerns over the privacy of a party's Facebook postings with the need to make all relevant discovery available, litigants should not expect judges to be willing to personally review extensive discovery materials in all cases. Consequently, parties should make every effort to determine and agree on reasonable boundaries for discovery of social media before concluding that an in camera review is the only viable alternative.
Guidance and SuggestionsOnce litigation appears imminent, attorneys should issue clear instructions to clients to retain all potentially relevant social media data so that they do not violate their duty to preserve evidence. In addition, counsel should search thoroughly through Google and social media sites for any relevant information about adversaries and potential witnesses. Once obtained, any comments or images posted on social media sites that are relevant to the case should be stored, either electronically or in hard copy form, and time-stamped to prevent future challenges concerning their authenticity. As many individuals use privacy settings to prevent unauthorized persons from accessing their social media information, formal discovery requests will also be necessary to ensure that relevant discovery is not omitted. Counsel should carefully tailor their discovery requests — including interrogatories, document demands and subpoenas — to encompass all potentially relevant social media materials. Moreover, once an adversary provides responsive discovery, counsel should carefully follow up and aggressively pursue any information the adversary identifies but refuses to produce on grounds of privilege or immateriality. Because of the disclosure policies Facebook and other sites follow, attorneys may need to have adverse parties execute release waivers so that counsel can obtain social media information directly from the website. These types of releases have been routinely used for decades to obtain medical and other records and are becoming increasingly common in cases involving discovery of social media. In the employment context, the growth of social media information also creates the need for pre-litigation strategies. In this regard, employers should enact guidelines educating employees, and managers in particular, about the pros and cons of social media as it relates to company operations, and should include recommendations about the types of comments and images that should be avoided (obviously, an employer's ability to control what employees do outside the workplace on their own free time is limited). One notable caveat, as discussed earlier, is that employers need to be extremely careful that such policies do not violate the right of employees to engage in concerted activity under the NLRA. Litigants should not allow the challenges social media presents to undermine their efforts to obtain a complete record of paper and electronic discovery, which is essential if they are going to adequately explore the full range of issues during depositions and at trial. While discovery of social media in employment cases requires lawyers to adapt litigation tactics to new technologies, counsel should not lose sight of the ultimate goal of full disclosure and a thorough airing of the issues. DisclaimerThis document and any discussions set forth herein are for informational purposes only, and should not be construed as legal advice, which has to be addressed to particular facts and circumstances involved in any given situation. Review or use of the document and any discussions does not create an attorney-client relationship with the author or publisher. To the extent that this document may contain suggested provisions, they will require modification to suit a particular transaction, jurisdiction or situation. Please consult with an attorney with the appropriate level of experience if you have any questions. Any tax information contained in the document or discussions is not intended to be used, and cannot be used, for purposes of avoiding penalties imposed under the United States Internal Revenue Code. Any opinions expressed are those of the author. The Bureau of National Affairs, Inc. and its affiliated entities do not take responsibility for the content in this document or discussions and do not make any representation or warranty as to their completeness or accuracy.©2014 The Bureau of National Affairs, Inc. All rights reserved. Bloomberg Law Reports ® is a registered trademark and service mark of The Bureau of National Affairs, Inc.
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