[co-author: Rabia Reed]

Seyfarth Synopsis: Social media is a potential goldmine of information when it comes to defending against employment lawsuits—pictures, status updates, location markers, “likes,” groups, and associated friends, all from the owner’s perspective and documented in real time. Read on for some thoughts on how this information can be accessed, and whether there are limits to what you can do to get it.

What’s not to like? Social media and discovery is an area rife with potential drama: pictures of a plaintiff in Hawaii while he is supposedly sick and off work? Yes, please! How and should we access such juicy information?

For once, in California, we have good news—the general consensus is that litigation-related discovery of content posted to social media sites is permissible. The main problem is that, both in formal discovery and in other forms of fact-finding, there isn’t a complete picture on how far you can go to obtain it. Below are some tips to help employers stay in the friend-zone and use social media to their advantage in litigation.

Go Narrow! (At Least At First)

In a frequently-cited case on the matter, Mailhoit v. Home Depot U.S.A. (C.D. Cal. 2012), the court debated how, if at all, social media can be used in litigation, and ultimately decided that defendants have a limited right to discover a party’s social media content. The Mailhoit court allowed the employer to make “particularized requests”—in that case all social media communications between the plaintiff and her current or former co-workers in any way referring to the lawsuit. But, the court said the employer was not entitled to look through the entirety of the plaintiff’s social media profiles and communications in the hope of “concocting some inference about her state of mind,” and it refused to accept any of the other proposed, broader, discovery requests.

But, even this limited discovery is important—once the relevancy of evidence can be demonstrated, courts may be more likely to permit additional discovery. The Mailhoit court suggested that when likely relevance of social media posts can be demonstrated, additional discovery may proceed.

At least one non-California court has already taken this leap. In Crowe v. Marquette Transportation Company Gulf-Inland, LLC (E.D. Louisiana 2015), the court ordered an employee to produce an un-redacted copy of his entire Facebook page, finding arguments that he had deactivated it were unpersuasive. The employer was even entitled to analyze his Facebook messages. That potentially generated a lot of useful information! If a California court can be persuaded that social media communications are in some way relevant to claims or defenses in the litigation, they, too, may yield to discovery.

Private vs. Public: Gimme, Gimme!

We know that, as of January 1, 2013, in California we cannot force employees or job applicants to turn over social media passwords. This reflects a public policy that recognizes our unique Constitutional right of privacy.

But what about publicly available information? California courts agree that there can be no expectation of privacy in publicly posted information on social media websites. See Moreno v. Hanford Sentinel, Inc. (Cal. App. 2009).

This means if the privacy setting on an employee’s Facebook posts reads: “Public” (i.e., available to anyone on or off Facebook), anything posted is fair game for discovery. The same goes for publicly available Twitter tweets, publicly available Instagram posts, publicly available LinkedIn info, MySpace page information, etc. Presumably, if you post on other websites publicly and clearly link it to your identity, those may also be accessed and used (e.g., Reddit, 4Chan, personal blogs).

Save, Save, Save!

Like a living being, social media is changeable. Publicly available, incredibly useful information can be here one day, gone the next. Do not rely on information staying up once it is up. To best preserve information publicly available on a page, you can screenshot the information, or print to .pdf. Then save and wait. There’s not much to compare to the look on a plaintiff’s face when confronted at deposition with a photo he thought for sure he had deleted, you know the one—featuring the plaintiff himself, bleary eyed and hoisting a beer, an hour before the starting time for his work shift, or wearing stolen merchandise, or partying it up while supposedly suffering from “emotional distress.”

Fake-Friending and Professional Responsibility – Don’t Be a �� 

“Fake-friending” is when a person creates a fake profile to add a person on Facebook or other social media with the aim of gaining full access to their more limited profile. There are many rules of professional responsibility for lawyers that may clash with this practice—(the American Bar Association has recognized at least four: 1) confidentiality, 2) truthfulness in statements to others, 3) responsibility regarding non-lawyer assistants, and 4) misconduct). Conducting covert research through fake-friending may also violate several of the California Rules of Professional Conduct, for example Rule 2-100 against “communication with a represented party.” Non-attorneys may be subject to similar ethical responsibilities.

Clearly, intentional fake-friending should not be part of your litigation arsenal. However, it is not always clear what the limits of these rules mean in practice—for example, would it be okay to use access by a third party to access private information shared (for example, another employee adding the plaintiff as a friend online)?

While the state of California has not firmly decided the issue, the San Diego County Bar Association released an Opinion (2011-2), stating: represented “parties shouldn’t have ‘friends’ like that and no one – represented or not, party or non-party – should be misled into accepting such a friendship.” Specifically, when the motive is to obtain information about the litigation, the opinion states this can violate Cal. Rules of Prof. Conduct 2-100 and constitute deceptive conduct in violation of Cal. Bus. & Prof. Code Section 6068(d).

Outside of California, other jurisdictions have found that even asking a third person, whose name a hostile witness will not recognize, to obtain social media information, is unethical, even if the person only states truthful information.

The Future of Social Media and Regulation: “It’s Complicated”

New apps, social media websites, and ways to share and exchange information emerge every day. Unfortunately, the law and public policy have not always caught up with technology. In some states, we are already seeing some peculiar stuff going on.

For example, in New York, courts have since 2013 held that some service via social media can satisfy due process. In one of the early cases, Federal Trade Comm. v. PCCare247 Inc. (S.D.N.Y. Mar. 7, 2013), the court noted: “history teaches that, as technology advances and modes of communication progress, courts must be open to considering requests to authorize service via technological means of then-recent vintage, rather than dismissing them out of hand as novel.” New York courts have also indicated that social media may be considered to be an effective means of providing notice to potential class members in class actions. See Mark v. Gawker Media, LLC (S.D.N.Y. 2016).

Workplace Solutions

If you find yourself in a pickle: “to like or not to like?”, “to friend or not to friend?”, “to snoop or not to snoop?”, remember to ask your attorney.

Edited by Coby M. Turner.