This article is part of an on-going, social media series.
When litigating against a former employee, the Internet 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.
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 the plaintiff’s privacy concerns, the court explained 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 the 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. Even though 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.
Lori Higuera, a director in Fennemore Craig’s Litigation Section, co-authored this article.
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