Aug 04, 2010

Lawsuits and Facebook

Do you have your own page on a social networking site, like Facebook or MySpace? What about a Twitter account? Your own website or blog? No matter how you express yourself online, be ready to see it all tagged as exhibits if you ever sue your employer. And warn your friends, too: Your posts to their pages could also get in front of the jury.

Those were some of the takeaways from a recent article by Erin B. Meyer, in Law Technology News. When a client is served with a complaint from an employee, Meyer immediately looks for the plaintiff on social networking sites, prints everything that's open to the public, saves all pictures, and copies the names of the employee's friends, to see whether any current or former coworkers made the list. Then come the discovery requests and subpoenas for all posts (including those to which access is restricted) relating to the facts of the case, including the plaintiff's emotional state -- and, if any of this evidence is no longer available, a claim of spoliation: intentional destruction of evidence that, if proved, results in an instruction to the jury that they should assume the evidence would have been harmful to the plaintiff's case.

Sound shocking? Consider that employers have been requesting this type of evidence, albeit in low-tech form, since employment lawsuits began. If a plaintiff spoke to friends about harassment, for example, the employer is entitled to ask them what the plaintiff said. If the plaintiff makes a claim for emotional distress and keeps a diary or journal, the employer is entitled to see those portions that deal with the plaintiff's emotional state. Ditto for medical records. Portions of these records that are private and unrelated to the lawsuit can be redacted (blacked out) before they are handed over, but generally, anything the plaintiff has said or written that relates to the lawsuit is likely discoverable, unless it was said in the context of a privileged relationship (to a spouse or lawyer, for example).

Which raises a question for the modern age: Can any portions of an online post be considered truly "private"? After all, the term for posting content online is "publishing," which means to make something public. Even if some content is restricted only to friends, the average Facebook user has 130 of those. To my way of thinking, this makes restricted content less like a diary -- intended "for your eyes only" -- and more like kind of a large party. This makes the privacy argument different and harder to make. Really, a plaintiff in this situation is arguing about context rather than privacy (in other words, that statements made to a particular group of people for a particular purpose should not be available to other people for a different purpose). There may be some interesting jurisprudence to come on these issues, especially as technology continues to blur the line between our private and public lives. In the meantime, however, think before you post.