Tipping The Scales Of Justice Back To Employees?

Back in 2011 (I say it like that because New Year’s already seems like a distant memory), I posted on November 17^th and August 26^th about continuing developments in the area of the discoverability of an individual’s social networking posts in the context of a lawsuit.  Two new cases that just came out of Pennsylvania continue the discourse.

First, the Court of Common Pleas decision in Largent v. Reed maintained the pro-disclosure trend.   There, plaintiff sued for injuries allegedly caused by defendant in an auto accident. However, as circumstances have it in these cases, plaintiff’s Facebook page raised questions about the true extent of her injuries, for example describing how plaintiff went to the gym and otherwise engaged in daily life activities in a manner that seemed to belie her injury claims in the lawsuit.   Re-affirming the principle contained in other decisions that Facebook posts do not rise to the level of a “general privacy privilege”, the court in Largent permitted defendant to probe plaintiff’s Facebook account as “one of the least burdensome ways to conduct discovery.”

But, then, another Judge in the Court of Common Pleas seemed to start tipping the scales back in favor of the social media user.   Thus, in Martin v. Allstate, plaintiff claimed that she suffered personal injuries after being struck by a vehicle, and the defendant sought to compel the production of plaintiff’s Facebook password.   According to reports, however, defendant’s attorneys never asked specific questions at the deposition that would elicit information on plaintiff’s particular usage of Facebook, or the nature (or frequency) of the information she posted.   Plaintiff argued in court that the defendant was merely seeking to perform “an untargeted search” of the social networking site.   The court in Martin agreed, and refused to provide the requested Facebook access.

Employer Take Away:   What should you as an employer take away from this development?   

On the surface, it could simply be a matter of where one court taketh, another court giveth.  Looking deeper, though, there is a common denominator that continues to emerge here.   Courts seem swayed by the equities and are willing to look past claims of “privacy” and “embarrassment” in the social networking arena, but only if there is some showing of need and relevance to the actual issues in the particular case.

While these discovery cases have largely arisen in the personal injury context, the principles, again, should resonate equally in employment-related disputes.   In other words, any request by your attorney in the context of a lawsuit with your employee (a written request or a request at a deposition) should be focused and narrowly-crafted to show a Judge ultimately that you are not simply engaging in the proverbial fishing expedition.   The request should also be based on a sufficient foundation, such as prior inquiries made as to the nature of the individual’s social networking activities, the types of information and discussions the individual has on his or her page, and the reason it is expected that the informal social media statements may likely be incongruous with the more “formal” position your employee takes in litigation.

About Michael Schmidt

Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.