When the Equal Employment Opportunity Commission filed a federal sex discrimination lawsuit in September 2009 on behalf of two women who claimed they were sexually harassed by a supervisor at Simply Storage Management, the company went after a trove of personal information: the women's Facebook and MySpace accounts. What better than personal pictures, videos, and status updates to try to discredit the women's claims of anxiety, depression, and posttraumatic stress caused by a hostile workplace?
The EEOC challenged the requests as overbroad, not relevant, and an invasion of privacy, but in May a federal district court judge in Indiana ruled that information from social media websites is not off-limits simply because the accounts are locked or private. The judge ordered the women to produce all profiles, postings, messages, photos, and videos related to "any emotion, feeling, or mental state."
With sites like Facebook hosting over 500 million active users, attorneys are aggressively pursuing social media outlets for evidence -- especially in employment litigation. "Social media is very powerful in an employment context," says Mary Mack, former corporate technology counsel at Fios and now enterprise technology counsel at ZyLab. If someone is claiming overtime and records show that the employee was active on Facebook at the time, that evidence is relevant and valuable to the defense. Although the Federal Rules of Civil Procedure don't explicitly address social networking sites, they likely fall under the category of "electronically stored information" added by the 2006 rule amendments, says Mack.
Still, litigants trying to access social media content can face various obstacles. One is the federal Stored Communications Act, which protects communications held by internet service providers from disclosure. In May a federal district court judge in California ruled in Crispin v. Audigier that Facebook and MySpace pages that aren't publicly available are protected information under the Stored Communications Act. While a court can order litigants to turn them over, it can't order the sites themselves to produce the users' private communications.
Facebook spokesperson Simon Axten says the company adheres to the letter of the law, including the Electronic Communication Privacy Act, which includes the Stored Communications Act. "We have and will continue to fight requests that we believe violate these statutes," Axten says. Last year, the company successfully deflected an attempt by the state of Virginia to subpoena information from a user's Facebook account in a dispute over workers' compensation.
"It's almost impossible to get social media content from the service provider due to the Stored Communications Act," says Paul Starkman, a labor and employment law partner at Arnstein & Lehr in Chicago. "So you are really fighting with the other side about whether And the more an account holder makes use of the site's privacy settings, the harder it is to get at the information, he says.
A magistrate judge recently took a novel approach in Barnes v. CUS Nashville, LLC, a slip-and-fall case stemming from injuries the plaintiff suffered at the Coyote Ugly Saloon in Nashville. There, the judge had found that a civil subpoena of Facebook was barred under the Stored Communications Act. To resolve the discovery dispute over the plaintiff's and witnesses' Facebook photos and e-mails, the judge offered to open a Facebook account, "friend" the witnesses, review the contested materials in private, and disseminate any relevant information to the parties. "That was pretty creative," says Starkman. (Neither witness took up the judge on his offer; one voluntarily gave the defense a link to her Facebook photo album.)
That judge's solution also bypassed another problem parties face: the collection of social media content. Instead of being stored in the user's computer or the social media company's servers, such content is more likely floating somewhere in the shared "cloud space" of leased data storage. The information is constantly changing, and simple screen shots may not capture all of the modifications or underlying metadata.
Tempting as it may be, shutting down an account is not an option for litigants. When a legal dispute arises, parties have a duty to preserve evidence. Closing an account would constitute "spoliation of evidence," explains Mack, which could result in monetary sanctions or adverse presumptions against that party in the case.
The preservation of social media is causing big headaches for corporations. With more companies making use of technologies like Twitter, Facebook, blogs, chat rooms, and wikis for business purposes, it has become even harder for them to monitor, gather, and preserve content, says Starkman. Using third parties as repositories for content, corporations don't get the same kind of control or access as when the content is stored on an in-house system.
Kathy Owen, a partner at DLA Piper in Dallas who specializes in complex litigation, advises corporate clients to issue a "document hold notice" in the event of litigation, instructing employees not to discuss the topic of the lawsuit on any social networking sites. Starkman adds that litigants should begin archiving social media as soon as the duty to preserve evidence is triggered. They may want to engage a technical expert to help retrieve and preserve the data, given its dynamic nature. New archiving tools like iCyte and PageFreezer are making it easier to capture social media content and the related metadata.
Despite these advances, "the technology is outpacing everybody's ability to keep up," says Starkman. "It's a real challenge for the lawyers, companies, IT people, and individuals involved."