Did you hear the one about the Attorney who thought “Social Media” was a dating website for singles over 40?


A definition of the term social media from Merriam-Webster states “forms of electronic communication (as Web sites for social networking and microblogging) through which users create online communities to share information, ideas, personal messages, and other content.”

Another definition of “social media” from online matters reads “Social media is any form of online publication or presence that allows end users to engage in multi-directional conversations in or around the content on the website.”

Examples of social media include facebook, myspace, LinkedIn, twitter, YouTube, and WordPress (free blogging site) among many, many others. Social media is not limited to desktop computers either. Cell phones, smart phones, PDAs, iPhones and iPads are popular examples of mobile devices which can be connected to social media capabilities.

How popular is social media these days?

Facebook: 750 million plus active users (July 2011). Users spend over 700 billion minutes per month on facebook.

Twitter: 175 million total Twitter accounts, 119 million Twitter accounts following one or more other accounts (March 2011) with 177 million tweets sent in one day on M arch 11, 2011

LinkedIn: 100 million users (March 2011)

Based on the above numbers, the social media phenomenon has become a major source of electronic data which in turn means a major target in litigation.

Social media content as a source of evidence in civil litigation has become a popular topic in legal magazines, blogs, twitter posts and other information sources. There are several challenges around social media content from the employee’s point of view and its use in litigation. Individuals tend to view social media content the same way they thought about emails and voicemails years ago – transitory, something that was private and didn’t exist for long anyway. People are shocked that potential employers are looking at the individual’s public facebook page, twitter postings or LinkedIn profile to get a better idea of a job candidate’s background or when police view the same content to help build a case against someone.

“Seriously officer, I wasn’t at that party where someone got shot…I was visiting my grandmother in Fresno”

“Really?… then how come there’s a picture of you at the party holding a bottle of Jack Daniels in one hand and a Glock 9mm in the other hand?”

Does an employer have a right to an employee’s social media content? Some qualifying questions to determine this  would be:

  1. Has the employee mixed personal and business related content in their social media activity?
  2. Was the employee’s social media activity initiated from within the organization’s infrastructure or using their equipment?

In a 2010 US District Court decision, Equal Employment Opportunity Commission v. Simply Storage Management, L.L.C. and O.B. Management Services, the defendant, Simply Storage, sought to discover from  two employees claiming sexual harassment against their supervisors, all photographs and videos posted to their Facebook and My Space accounts, electronic copies, or alternatively hard copies, of their profiles which includes updates, messages, wall comments, causes/groups joined, activity streams, blog entries, blurbs, comments and applications. The EEOC objected to production on the grounds that the request was overbroad, not relevant, unduly burdensome, and improperly infringed on privacy and compliance would harass and embarrass the claimants. Simply Storage defended the request arguing that the claimants’ had put their emotional health at issue implicating all their social communications.

The Court ruled that the EEOC must produce relevant Social Networking Sites (SNS) communications in accordance with its guidelines noting first that SNS content is not shielded from discovery simply because it is locked or private.

In another case, TEKsystems, Inc. v. Hammernick et al., No 0:10-cv-00819, filed in the United States District Court for the District of Minnesota, is the first-known restrictive covenant lawsuit regarding allegedly unlawful conduct via social media (in this case, LinkedIn).

When Hammernick’s employment with TEKsystems ended, she went to work for Horizontal Integration, Inc., also an IT staffing firm. The complaint alleges that, after her employment with TEKsystems ended, Hammernick unlawfully communicated, on behalf of Horizontal Integration, with at least twenty “Contract Employees” via LinkedIn, the premiere social networking website used for business and professional purposes.

The allegations against Hammernick list, by name, the sixteen Contract Employees that she allegedly “connected” with on LinkedIn, in violation of her employment agreement with TEKsystems. This case raises the legal question whether merely “connecting” with professional contacts via professional networking websites constitutes a violation of a restrictive covenant prohibiting such “solicitation” or “contact.” Does the mere existence of a network of professional contacts equal solicitation? Will compliance with a non-solicitation restriction require individuals to “disconnect” or “de-friend” colleagues, customers, or clients of former employers until the non-solicitation period expires?

Smartphones are a super highway into your private social media content

Recently, California’s Supreme Court reached a controversial 5-2 decision in People v. Diaz (PDF), holding that police officers may lawfully search mobile phones found on arrested individuals’ persons without first obtaining a search warrant. The court reasoned that mobile phones, like cigarette packs and wallets, fall under the search incident to arrest exception to the Fourth Amendment to the Constitution.

Do you have a Twitter app or LinkedIn app on your smart phone? Does it automatically enter your logon and password when you start the app? If they do then law enforcement could take a look at you private facebook, LinkedIn or Twitter accounts.

Also be aware, if you voluntarily disclose or enter your mobile phone password in response to police interrogation, any evidence of illegal activity found on (or by way of) your phone is admissible in court, regardless of whether or not you’ve been Mirandized.

Its obvious social media is a new speed bump in the eDiscovery landscape. Employers need to create policies to address their concerns and educate their employees about these policies and the consequences of not following them.

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2 thoughts on “Did you hear the one about the Attorney who thought “Social Media” was a dating website for singles over 40?

  1. Hi Bill,

    You hit on some important issues regarding recent case law that start to outline what our legal landscapes will look like with the proliferation of social media use in the context of our personal and professional lives. I would like to add to the key considerations you posted:

    Does an employer have a right to an employee’s social media content? Some qualifying questions to determine this would be:
    1. Has the employee mixed personal and business related content in their social media activity?
    2. Was the employee’s social media activity initiated from within the organization’s infrastructure or using their equipment?
    Adding:

    3. What privacy settings were present at the time of the posted relevant information? Or could the privacy setting serve as determining factor in the discoverability of the information? See Crispin v. Christian Audigier Inc., 2010 U.S. Dist. Lexis 52832 (C.D. Calif. May 26, 2010) where the opinion sets a precedent that, in future cases, courts may allow protection to social networking and web hosting providers from discovery based on SCA (Stored Communications Act) protections as ECS (Electronic Communication Services)and RCS (Remote Computing Services) providers and may consider social media ESI protected, based on the provider’s privacy controls and the individual user’s privacy settings.

    4. Did the employer have a policy and was that policy enforced both technologically and through employee training and education? One reason Social Media inspires so much fear is that employees and don’t have guidelines or policies from their employers surrounding its use.
    Bill points out, “its obvious social media is a new speed bump in the eDiscovery landscape. Employers need to create policies to address their concerns and educate their employees about these policies and the consequences of not following them.”

    I aim to expound on that as Symantec’s Social Media Protection Flash Poll is the result of research conducted in April 2011 by Applied Research, which surveyed IT and C-level professionals responsible for computers, networks and technology resources at small, medium, and large enterprises (defined as 1,000-2,400, 2,500-4,999, and 5,000+ employees). The report was designed to gauge how organizations protect themselves from negative consequences of using social media. The survey included 1,225 respondents in 33 countries in North America, EMEA (Europe, Middle East and Africa), Asia Pacific, and Latin America.

    We found that out of all companies surveyed:
    • Social Media risk management strategies implemented:
    – Social media policy (24%)
    – Employee training (22%)
    – Processes to capture confidential/proprietary data (21%)
    – Data loss protection (21%)
    – Technology to manage data (20%)
    – Collect/archive sensitive information (18%)

    With only 24% having a policy, I predict many more cases to follow. The main message from my perspective is to be proactive, and revisit your policy as a living breathing document as social media is fast changing. Then bring the policy to life, by implementing the right technology to protect your organization and/or limit employees use so the content can be controlled.

    Moreover, having a policy does not matter if there is no training or education surrounding it. Companies want to be in a position where if they are involved in litigation they can point to sound policy and procedure, followed up by training and education. I would even go so far as to suggest that in employment contracts these issues be addressed up front, and agreement with the policy be memorialized at the time of hiring.

    Ultimately, policy and training are vital, but the last component is the technology.
    • Are you in a regulated enough industry where you need to be archiving Social Media sites and do you have the right technology in place to address those needs?
    • Is it preferable to limit certain websites from your organization all together in order to limit the access and creation of content?
    These concerns are very real as indicated by the below statistics from our survey:
    • Cost of social media incidents (past 12 months): $4,292,897
    – Reduced stock price – $1,038,401
    – Litigation costs – $650,361
    – Direct financial cost – $641,993
    – Damaged brand/trust – $638,496
    – Lost revenue – $619, 360

    Please feel free to contact us should you have more questions or want more information about best practices in the Social Media space.

    • Thanks Allison, Excellent qualifying questions. Obviously this topic will continue to get a great deal of play. I noticed the Symantec Social Media announcement the other day, congratulations.

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