This week, the Legal Intelligencer reports on how some employers are routinely investigating the social network sites (SNSs) of employees who make claims against them. Called "How Facebook Can Make or Break Your Case," the article is mostly about how Facebook posts can make the employer’s case and help break the employee’s.
Corporate defense attorney Eric Meyer explains:
The first thing I do after I receive a copy of an employee-filed complaint — before I read the complaint — is check the plaintiff-employee out on Facebook and other social networking sites.
I print any information that employee has made publicly available. I save any pictures the employee has published online and I send a list of the employee’s friends to my employer-client to cross-check against a list of current and former employees. I do this because, generally, a Facebook user will allow friends greater access to online content.
Meyer goes on to explain how some employees have posted workplace complaints, photos, and discussion of their anger or other motives that may be useful to their adversaries. Even if an employee has not posted anything useful, failing to preserve the content of electronic media can get the employee in trouble for "spoliation" of evidence. Meyer cites to a recent federal court decision compelling a plaintiff to provide SNS information in discovery. See EEOC v. Simply Storage Management, No. 09-1223 (S.D. Ind. 5/11/2010) (requiring plaintiffs to produce all information, including verbal communications and pictures, from social networking sites over a two-year period that “reveal, refer or relate to any emotion, feeling, or mental state” or “reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state”, including third-party communications that place the plaintiffs own communications in context). Meyer provides examples of useful SNS information, contact information for serving subpoenas on internet service providers, and a plea to employers to make SNS searches in every case.
