Some people in positions of power still aren’t savvy on the expanding world of social media, and some of these folks are just flat-out ignoring it. Social media is a platform filled with a multitude of useful tools. From gaming and stress relief, to building a professional network and advancing your career, to even hosting a marketing campaign, social media has incredible potential.  However, for someone in a managerial position (or someone advising them in a legal capacity), perhaps more important than knowing the benefits of Social Media is knowing the dangers.

1. Every part of every profile on any platform can be deemed discoverable

In litigation, attempts to access ‘private’ information on Facebook, LinkedIn and similar platforms are nothing new, but real patterns are starting to emerge on how judges respond to those attempts. One thing has been established time and again: given the proper proof of relevancy, any form of social media is discoverable.  This article published by IT-Lex outlines a case where the plaintiff ended up having to submit “…all necessary information to access any social media websites used by [the plaintiff]” over the course of several years to a special master for review.  That’s right, any social media platform.

Sure, this makes sense, as so succinctly put in a recent E-Discovery Law Today article by Brett Anders, “…the plaintiff and defendant are entitled to all relevant information regarding a plaintiff’s claims,” but even conservative users might wince at the thought of how many secrets have slipped out over the breadth of every single social media platform they’ve used in the past 4 years.  But the good news is…

2. Broad requests for eDiscovery are being squashed all over

A good way to look at it: “Facebook discovery requests are just like regular discovery requests, the material requested must be relevant or the request will be thrown out.” Meaning making private information on social media platforms discoverable is not just a matter of asking nicely. This is happening often enough to inspire article headlines like Social Media Discovery: Another Court Says Don’t Go Fish, concerning a case in Florida. In e-discovery the term ‘fishing’ refers to issuing a too-broad request for materials,  without supplying reasonable proof that relevant or admissible ESI will be found in that material. More case examples of this happening can be found here and here

3. Creative justification can compel discovery

However, it is useful and important to realize that this developing standard in case law doesn’t necessarily make things safe for anyone, just fair. Meeting the court’s “threshold requirement” for proof of how likely the information in a Social Media account is relevant and admissible doesn’t necessarily take laborious research and inference, but creativity.  In one case where the plaintiff’s claims included personal injury, pain and suffering, among other things, the defense sought to make the plaintiff’s private social media information discoverable. They simply found out that she had gained more friends on Facebook since the time of the incident in question, and claimed that this showed that “…there must be some relevant information in the account regarding her ‘capacity to enjoy life[.]’” The court ruled the requested information was discoverable. More info available here.

4. Social Media is PERFECT for sharing photos, videos, jokes… and trade secrets.

In PhoneDog v. Kravitz No. C 11-03474m 2011 U.S. Dist. LEXIS 129229 (N.D. Cal. Nov. 8, 2011) the defendant was sued because he maintained control of a twitter account with 1700 followers that he acquired while under employment at PhoneDog, for promotional purposes.  The defendant changed the account name but kept the followers, and the plaintiff claimed that the list of contacts constituted confidential, proprietary, and trade-secret information. Kravitz eventually was allowed to keep the account, but the court never actually ruled if the list constituted a trade secret.  Trade secret lawsuits with grey areas like this are popping up all over the place as social media is proliferating and BYOD policies are becoming more common. These lawsuits are often sparked by situations where employees aren’t even aware they are doing something wrong.  Some warn that this means companies have a pressing responsibility to write policies and procedures to explicitly state what constitutes a trade secret or proprietary information.  Others remind that companies can be responsible for things posted by their employees on social media , even while those employees aren’t on the clock, and so the need for policies outlining social media use are becoming exponentially pressing.

5.  The NLRB Cares A LOT about what that policy says though.

Policies concerning Social Media use in the workplace unfortunately (or fortunately depending on your job title) are severely restricted by the National Labor Relations Act (NLRA). It states that all rights concerning an employee’s ability to talk about their workplace conditions and employer’s conduct, etc. are maintained over social media. This basically means that an employee can complain about anything having to do with the company, in a public forum, as long as it is considered “concerted” activity by the National Labor Relations Board. The judgment is case by case, but in a quick breakdown of what it takes for an activity to be considered “concerted”, it has to either:
– have the intention of seeking counsel or discussion with others, who are either associated with the company or not
-or be born of a discussion of complaints that has already taken place.

What is not protected is just complaining to no one in particular, for no distinct reason.  Great guidelines on how to make your Social Media Use policy NLRA-friendly and more information on the Act can be found on Inside Council here.

6. Social media can actually boost morale at work

Now that you have a good idea about how social media is fitting into the legal landscape in terms of e discovery and as a great source for lawsuits, it’s important to keep in mind some new research by two members of the Society for Industrial and Organizational Psychology. It says that the limited use of cell phones and access to social media will actually raise workplace morale without harming productivity. Chad Brooks from BusinessNewsDaily reports here.

Bonus resource

The following handful of states currently have legislation concerning social media and its role in the workplace, check out the rules if you live in one of the 11.
Arkansas (Ark. H.B. 1901)
California (Calif. Lab. Code Section 980)
Colorado (Colo. H.B. 1046)
Illinois (820 ILCS 55/1 et seq.)
Maryland (Md. Lab. and Employment Code Section 3–712)
Michigan (MCL Sections 37.271 et seq.)
Nevada (Nev. A.B. 181)
New Mexico (N.M. S.B. 371)
Oregon (Or. H.B. 2654)
Utah (Utah Code Sections 34–48–101 et seq.)
Washington (Wash. S.B. 5211)