Employers Can Discover Employee Facebook Posts, But….

One of the high-profile battles being fought in the social media world continues to be over the ability of one party in a lawsuit to compel the other party to produce messages, posts, pictures, and other “private” things done over a social networking site like Facebook.   The trend continues to reveal that courts are willing to compel disclosure in the right circumstances, and the most recent decision issued by a New York appellate court is no different.

In Patterson v. Turner Construction Company (New York Supreme Court, Appellate Division, First Department, October 27, 2011), the plaintiff sued for personal injury damages that included physical and psychological injuries that he claims to have suffered.   During the lawsuit, the defendant asked the court to direct the plaintiff to provide an authorization allowing defendant to obtain “all of plaintiff’s Facebook records compiled after the incident alleged in the complaint, including any records previously deleted or archived[.]”   The plaintiff, obviously, fought that request.

The first level court granted the defendant’s request, but the appellate division modified that ruling slightly, though still indicating that requests for social networking information are not per se improper.   First, the court on appeal rejected plaintiff’s privacy argument, stating that “[t]he postings on plaintiff’s online Facebook account, if relevant, are not shielded from discovery merely because plaintiff used the service’s privacy settings to restrict access.”  

The operative phrase there is “if relevant”, as the appeals court still held that “it is possible that not all Facebook communications are related to the events that gave rise to plaintiff’s cause of action.”   So, in light of the fact that defendant’s request was overbroad, the appellate division directed that the matter go back to the first level court to provide:

“a more specific identification of plaintiff’s Facebook information that is relevant, in that it contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, and losses, and other claims.”

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

The Patterson decision involves a personal injury action, yet the principles apply equally to employment litigation.   The fundamental premise is that employers can and should seek discovery from plaintiff employees in the context of a lawsuit.  However, the request must be made in the right kind of case, at the right stage of the case, and have the right scope.  

It is often difficult to identify with precision the relevant information that will be gleaned through social networking discovery before you see what is there (that’s partly the point of seeking the discovery in the first place).  There is a fine line between a mere fishing expedition and a reasonable likelihood of discovering relevant facts.   By showing that you (through your attorney) have crafted a reasonable, narrowly-tailored request for information that is “relevant” because it has a good chance of contradicting or conflicting with actual positions taken by the employee in the case, you will have a far greater likelihood of success in getting potentially helpful information for your defense.

About The Author

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.

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About Social Media Employment Law Blog
Social Media Employment Law Blog is devoted to the interplay between social media and employment law, an extremely topical and significant area of law for employers in this new technology era. Published and edited by Michael Schmidt, Vice Chair of the Labor & Employment Department, Mike concentrates in representing management in all facets of employment law and has been frequently quoted on employment law topics, and is regularly interviewed by trade publications and national journals for his opinions on legal trends.
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