Social Media in Litigation

List of 689 Social Media evidence cases (2010-2011)

http://x1discovery.com • MySpace (315 cases), Facebook (304), LinkedIn (39),

Twitter (30), Foursquare (1). • Criminal matters were most common case type,

followed by employment-related litigation, insurance claims/personal injury, family law and general business litigation (trademark infringement/libel/ unfair competition).

2

Concerns for Employers • A concern about legal risks/discovering information about protected

characteristics (e.g., age, race, gender, religious affiliation) • Inability to verify with confidence the information from an applicant’s social

networking page • Information about job candidates taken from these sites may not be relevant to

their work-related potential or performance

• Not all job candidates have information on social networking sites

• Concerns about invading the privacy of job candidates

• It takes too much time and effort in relation to information gained

• Job candidates might be less likely to apply if they knew the organization screened job candidates in this manner

Risks

• Hostile Work Environment

– When postings contain sexually inappropriate, otherwise discriminatory communications

• Discrimination Claims

– Comments about protected status can be proof of discriminatory animus

• HIPAA and other Client Protections/Ethical Breaches

– If Company employee discloses “Protected Health Information,” attorney-client privileged/client confidential info

• Slander, defamation, and libel

– When employee posts negative statements about another employee, vendor, competitor, etc.

Risks

• Trade secrets and intellectual property disclosure/infringement

– Disclosure of certain of your trade secrets or IP can destroy (or at least erode) the “confidential” or protected status of the information

– Employee’s use of someone else’s IP may constitute “infringement”

• Proven by e-trail

Risks

• FTC/Endorsement Rules

– Effective 12/1/09

– Intended to curb “deceptive advertising”

– “Material connections” between blogger and company MUST be disclosed

The National Labor Relations Board

• Federal Agency headquartered in Washington, D.C.

• Has a five member governing board, but the majority is determined by the party in power

• Has the authority to investigate, adjudicate and sue you to enforce their orders.

Social Networking/Media Policies

• Policies which the NLRB feel are too broad.

– Example: “Employees should not make disparaging remarks about the company, their supervisor, etc. on social media websites, blogs or any other form of electronic media.”

– Limited prohibition to trade secrets, confidential information about the company or customers, and information which if released would breach agreements the company has.

8

Information from Social Networking Sites

• Concerted Activity An activity is concerted when an employee

acts “with or on the authority of other employees, and not solely by and on behalf of the employee himself.”

• Protected Activity Employee statements are considered

protected when it is clear from the context of the statements that they implicate “working conditions” of the employee.

9

Social Media Policies…

• On May 30, 2012, the NLRB issued NEW Guidelines on Social Media Policies.

• The Memo discusses six relatively common policies that it found unlawful, including: • “Don’t release confidential guest, team, or company information”

• “Offensive, demeaning, abusive or inappropriate remarks are as out of place online as offline…”

• “Think carefully about “friending” co-workers”

• “Don’t pick fights. Communicate in a professional tone.”

• The Memo is simply guidance, and the courts will have to sort out the interplay between protected speech and good business practices.

Drinking Off the Job

• High school teacher from Georgia takes European vacation.

• Posts pictures to Facebook of her drinking alcohol.

• Forced to resign.

Tell Us How You Really Feel

• Cisco job candidate offered job. • Candidate tweets ─ “Cisco just offered me a job! Now I have to

weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work.”

• Cisco responds

• Job offer . . . rescinded.

Online Database of Social Media Policies

List of 214 Social Media Policy Examples

http://socialmediagovernance.com/policies.php