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The Defensive Use of Social Media

E-mail, texts, MySpace, Facebook, Twitter, LinkedIn, Flickr, Instagram, Pinterest, blogs and other social media sites are no longer fringe modes of social networking. They are mainstream methods of communication. Facebook claims it has over 800 million users. Twitter claims its users post over 150 million tweets per day. YouTube claims it up loads more video content each day than the three major networks have created in the last 60 years.

As employees blur the line between their personal and work lives, social media gaffes can cause embarrassment, start unwanted rumors about the business, cause employee problems, unintentionally release proprietary information or worse. When a client is involved in litigation, however, social media can also aid in the defense and provide evidence and insight into the plaintiffs activities and discussions. Law firms now hire employees whose only job is to find out what the other side is posting on the web. You would be surprised at what gets uncovered. Despite all the horror stories, people still maintain a false sense of privacy when posting to a site or texting a friend or co- worker.

While information on the web may not win or lose a case, it certainly can effect credibility.   Information posted on social media platforms is discoverable.   During litigation, a party’s emails, posts, and tweets may be scrutinized.   The “wrongfully” terminated employee may have posted false and derogatory statements about her employer only days before her termination. The injury plaintiff who can’t work due to a knee injury may post pictures of his weekend hike.   The former employee making a hostile work environment claim may post discriminatory or sexist material on their Facebook page.   The list goes on because many people do not understand the information is public.

Because information contained in these mediums can constitute evidence, it can also be the subject of a spoliation motion if altered. In July of this year, a Virginia lawyer agreed to a five year license suspension over a controversy in which he told his client to “clean up” his Facebook page. The client lost his wife in a trucking accident.   Following her death, the client posted pictures of himself holding a beer and wearing a t-shirt that said “I love hot moms.” Lawyers for the defendants found the picture after it was deleted. The client and his lawyer were sanctioned $722,000.00 for violating state ethical rules that govern candor toward the court, fairness to the opposing party and counsel, and litigation misconduct.

Every company needs to be aware of the risks posed by social media and must, therefore, put in place policies and procedures which address employee behaviors on these platforms.   Going forward, a corporate litigant should also raise the issue of social media searches with its lawyers. The platforms used by employees are, by and large, accessible to the public. Use these tools to learn about the opposition; you may just find something that turns the case.

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