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NYC Litigation Blog

Tuesday, December 27, 2016

Using Social Media in Employment Litigation

Can  social media info be used in employment litigation?

Now that we are deep in the midst of the Age of Social Media, there is a tremendous amount of evidence available to lawyers dealing with employment litigation. The courts have ruled that, although in most states defendants cannot be forced to reveal their passwords to private accounts, when they have made social media access "public," any words or images that are accessible to the public are fair game as far as legal evidence is concerned. This means that all social media entries -- Facebook, Twitter tweets, Instagram posts, LinkedIn and MySpace information may be tapped for damaging information, as long as such information is publicly available and connected to the identity of the person who posted it.

New York courts have also ruled that social media may be considered to be an effective means of providing notice to potential class members in class action lawsuits. 

Examples of Social Media Evidence

Social media is full of words and images that can contradict defendants' statements (even statements made under oath). Examples of such can be found in pictures of supposedly disabled employees playing basketball or lifting weights, descriptions of fun-filled days on the beach by employees who are "home sick," or clearly inebriated defendants holding beer cans while getting into their vehicles to make company deliveries.

The Importance of Saving Evidence

Of course, we are all aware of the temporary nature of internet postings, which can be taken down as quickly as they are posted. Therefore, it is incumbent upon astute attorneys, or the plaintiffs they defend, to preserve social media evidence by taking screenshots or printing evidence to pdf files. 

Cautions Regarding Fake-Friending

While private citizens may have a certain amount of leeway in creating sketchy profiles online, there are strict rules applying to members of the legal profession. According to the American Bar Association, attorneys must respect confidentiality, be truthful in statements to others, take responsibility for non-lawyer assistants they work with, and always avoid misconduct. Lawyers, therefore, can only cull pertinent data from public sites and are forbidden to "fake-friend."


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