E-DISCOVERY: The Internet is Forever

Social Media Has Arrived

Social media has become ubiquitous. It is not surprising that its content has become the target of a growing number of “E-Discovery” requests in the course of modern litigation. Social media posts are now being utilized by defense attorneys to strengthen their case. Individuals need to be aware that anything posted on the internet over a lifetime may ultimately be attainable through E-Discovery.  In that context, Facebook, Twitter, Tumblr, MySpace and Instagram can quickly become tools to humiliate a careless plaintiff.

As sites like these grow in usage and popularity,  the law will adapt and provide attorneys conducting litigation increased access to the wealth of information stored on them.  Don’t be fooled.  These posts are not private. With E-Discovery, they are easily accessible to attorneys during the course of a lawsuit. Sometimes they can shatter an otherwise solid case.

What Can Your Employer Claim as Company Property?

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There are often issues of an employer’s right to view and acquire company information you may be storing on your personal media devices, such as your laptop or your smart phone.  Your phone may belong to you, but who ultimately owns the Twitter account you’ve been managing? Who owns the information posted on it?

The answer may not be all that clear. It will depend on the nature of the content, whether it was done in your name or that of the company, and what the initial understanding was between yourself and your employer.  It is also a good idea for businesses to spell out their expectations beforehand. When asking an employee to manage a Twitter feed or to run another social media site on a company’s behalf, an employee should probably not use his or her own electronic devices.

Businesses Face Increasing Risk

As the pressure to market through social media sites grows, Businesses inevitably become more vulnerable to E-Discovery.  As one commentator has pointed out:

“[…] what companies and their employees say on social media sites can be used against them. Conversely, your adversaries’ posts, blogs, or Tweets can potentially be used against them as well. . . . . Social media presents unique challenges to businesses trying to manage their litigation risks. [..] an employee who responds to an online complaint regarding its company’s products—even without the company’s authorization—might be exposing (albeit, unwittingly) its employer to potential liability. If the employee posts something that is not accurate, for example, or that is otherwise inconsistent with the employer’s official stance, this may undermine the employer’s litigation position.”[1]

Social Media use is here to stay. 

Employees must learn how to communicate with friends and family without inadvertently causing harmful exposure at some later date.  They must also educate themselves as to the inherent risks of posting on behalf of their employers without a clear agreement in advance.   These skills are often counter-intuitive, as the instinct is to share ideas in the moment works against the enacting of self-censorship.  It may seem an unwelcome inhibition.  After all, the post is marked “Private/Close Friends Only.”

But it is important to learn how to use communication tools that may be opened up to parties with interests that may be antagonistic to yours.  In Barnes v. CUS Nashville, Case No. 3:09-cv-00764   the magistrate settled a Facebook discovery dispute by ordering that the plaintiff issue a “friend request” to a special account created by the Judge in order that he might view her data in camera and make a determination as to what information should be produced to defense counsel.

The Takeaway

This conversation isn’t going away any time soon.  We all need to be aware of the risks involved in social media, and the vast erosion of personal privacy that will undoubtedly be the end result of so much “sharing.”

Lazear Mack, LLP
Employment Law Attorneys
436 14th Street, Suite 1117
Oakland, CA


[1] McHale, Robert; May 2012 – QUE Publishing

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