Social Media Advisor – The Use of Social Media as a Lawsuit Tool

Social media offers a valuable opportunity to employers who become involved (or who may become involved) in litigation with a former employee.   A recent survey of court personnel confirms that the use of social media among judges and jurors continues to increase. So what about the parties to those lawsuits?

On August 26th, the New Media Committee of the Conference of Court Public Information Officers released a report entitled “New Media and the Courts: The Current Status and a Look at the Future.” (www.ccpio.org/documents/newmediaproject/new-media-and-the-courts-report.pdf.)     According to the report, approximately 1,500 members of the court community (federal and state) responded to an online survey inquiring into the use of various forms of social media.   Among the interesting results are that “more than one-third of state court judges and magistrates responding to the survey use social media profile sites like Facebook[.]” In addition, 56% of judges create jury instructions during actual trials that specifically address some component of juror use of social media during the trial proceedings, and more than 97% of those responding believe that judges and court employees should be educated in proper uses and practices of social media.

While consideration must be given by jurists to applicable opinions on judicial ethics, it is clear that judges are using social media, including social networking sites and blogs, for both personal and professional reasons.   Recent news publications have also described jurors using social media during trials to “friend” or obtain information about lawyers, parties and witnesses. One should not, however, ignore the parties themselves to these lawsuits. And while social media use is not without its limitations, social media can be a valuable tool for employers who become embroiled in litigation with a former employee.

Employer Take Away:   What should every employer take away from this development? 

(1)        Restrictive covenant and trade secret lawsuits continue to be filed in state and federal court.   In those cases, it is mostly the employer suing a former employee (and, often, the former employee’s new employer) for breaching an agreement not to compete with the former employer or not to solicit the former employer’s customers or current employees.   Once an employee separates from the company, obtaining information through social media may provide valuable information about: the nature of the former employee’s current business endeavors; any solicitations in which the former employee may be engaged; posted announcements of the former employee’s current location, affiliation, or experience; inappropriate disclosure of your company’s trade secrets or proprietary information; and any potentially disparaging comments about your company.   Such information may prove valuable prior to, and even during, any lawsuit involving that employee.

(2)        Social media can also be useful in other lawsuits involving a former employee.   For example, an employer being sued for disability discrimination may find information and postings that suggest an employee may not truly suffer from the condition alleged. Or, the information derived from social media may demonstrate that a former employee’s claim of “mental pain and suffering” is in fact belied by the activities or relationships exposed by the employee’s own words or pictures.   Or, perhaps, information reveals some basis to utilize the “after-acquired evidence” doctrine to support an employment-related decision such as termination, or reveals some inappropriate motive behind the former employee’s commencement of the lawsuit in the first place.

(3)        Employers should, however, exercise caution when attempting to utilize social media in litigation involving current employees. As mentioned in prior Social Media Advisor blog posts, social media inquiries may reveal information about current employees that you did not necessarily seek to obtain, but now could contaminate any legitimate employment-related decision and lead to a claim by the current employee that a decision was based on an impermissible purpose as a result of the employer learning certain information about the employee.   In those circumstances, employers may want to limit the scope of any search, as well as create a “Chinese Wall” between those performing any search and those who have decision making or supervisory responsibilities over the particular employee.

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