Sunday, August 1, 2010

Facebook Discovery Tips

Handy discovery tips for Facebook from Law and Technology News:

Facebook has over 500 million active users.

Twitter users are recording an average of 55 million tweets a day.

If an employee files suit against your client, what are the odds the employee uses social media? I'd say they're pretty good. Just imagine missing the Facebook post:

"I'll do whatever it takes to get back at my employer."

The first thing I do after I receive a copy of an employee-filed complaint -- before I read the complaint -- is check the plaintiff-employee out on Facebook and other social networking sites.

I print any information that employee has made publicly available. I save any pictures the employee has published online and I send a list of the employee's friends to my employer-client to cross-check against a list of current and former employees. I do this because, generally, a Facebook user will allow friends greater access to online content.

Why do I want this information? Because many social media users do not filter what they publish online -- they find social media cathartic. So, for every couple of banal "I'm going to the movies with John tonight" online posts, you'll find an "I just had the worst day in the office because …" post.

Don't believe me? Check out this, this, this, and this blog post from Delaware labor and employment attorney Molly DiBianca, who writes about how a waitress lost her job for a complaint made on Facebook.

WHAT IF THE PLAINTIFF RESTRICTS FACEBOOK ACCESS?

Recently, in EEOC v. Simply Storage Management, a federal court permitted an employer to obtain discovery of an employee's social networking activity that, through privacy settings, the employee had made "private" and not available to the general public.

That makes sense, right? I have yet to see a tweet or a Facebook status update appear on a privilege log.

So, as part of discovery, an employer should consider requesting:

All online profiles, postings, messages (including, without limitation, tweets, replies, retweets, direct messages, status updates, wall comments, groups joined, activity streams, and blog entries), photographs, videos, and online communications that:

1. refer or relate to the allegations set forth in the complaint;

2. refer or relate to any facts or defenses raised in the answer;

3. reveal, refer or relate to any emotion, feeling, or mental state; or

4. reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state.

IF THAT DOESN'T WORK, BRING OUT THE BIG GUNS: SUBPOENAS, SPOLIATION

If the responding employee no longer has access to responsive information, then go right to the source with a subpoena. To guide you, here is a list of internet service provider mailing addresses for service of subpoenas. (Just be prepared to pay some hefty fees, such as those Facebook charges for processing a third-party subpoena). And make sure you obtain a written consent (such as this one from LinkedIn) from the employee. As labor and employment attorney John Hyman explains in a recent blog post, many social networking sites use the Stored Communications Act, 18 U.S.C. § 2701 et seq., to aggressively protect the privacy of user content.