Published in The Legal Intelligencer on May 16, 2012.
By now, most litigators have bumped up against at least one or two social media issues in their practices. Social media has become a hot-button discovery issue and a potential source of valuable information in cases from personal injury to employment discrimination. Often, social media discovery requests are now included as a matter of course in individual plaintiff cases. Juries are using social media to broadcast, often improperly, about their cases while lawyers scour social media during voir dire looking for juror bias. Companies now frequently use social media to vet applicants, with some even going so far as to force applicants to permit company employees to access their various social media sites.
With Facebook expected to hit the 1 billion user mark in August and more than half of Americans using at least one social media platform, the importance of social media in business and everyday life will only increase. In-house counsel have no real choice but to become familiar with the various social media platforms, the issues these platforms create for their companies, and the pitfalls and advantages they present in management and litigation.
To that end, here is a way that counsel can use social media to their advantage.
Investigating and Defending Claims
Social media websites can provide extremely helpful evidence to employers in both investigating and defending claims of harassment brought by employees. For example, when the employer receives a claim of co-worker harassment, it should consider reviewing the social media of the alleged harasser as part of its investigation. If the social media provides evidence that the harassment did in fact occur (which it can and often does), the employer can use that information to discipline the employee as part of its remedial actions in an effort to ensure that the harassment ends. Whether or not evidence of harassment is found, the fact that the employer used this avenue of investigation can help, in the event that the employee brings suit, in establishing that the employer took prompt and effective remedial action.
An investigation of a claimant's social media can also provide very helpful evidence in defending against such a claim. For example, if the alleged harasser and victim are "friends" on Facebook, their communications can often reveal whether any allegedly harassing conduct was, in actuality, welcomed and...