In a potentially precedent-setting opinion, a New Jersey Court has ruled that Facebook and information posted in other social media mediums may not be discoverable by an employer during the course of a lawsuit. For purposes of this article, the term “Facebook”, unless stated otherwise, shall be used to describe other social media mediums as well.

Background

For those readers who have not had the privilege of being involved in a lawsuit, briefly, “discovery” is the period of time after a plaintiff files a complaint, a defendant answers the complaint, any responses or replies are final - then the discovery time period begins. This can take the form of questions, requests, answers, depositions, etc.

A recent trend in the employment litigation world involves employers demanding social media information of a plaintiff/employee/former employee.  Another trend is potential employers requesting job applicants’ social media login and password information at interviews, but this is a different topic for a different article.

Courts in various jurisdictions, both state and federal, are handling this social media demand differently.  The state court in New Jersey concluded that there are certain pages designated as “private” and therefore are not fair game for parties’ demands to review the private information contained therein.

Employer’s Legitimate Interests

Oftentimes, the main goal here for employers is seeking information from a plaintiff’s social media page that demonstrates a conflict and inconsistency in the plaintiff’s current legal position which may, for instance, be the subject of a workplace investigation.

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For example, an employee, in the course of a company investigation for sexual harassment by a co-worker, has a picture displayed on a Facebook page illustrating the alleged harasser and the victim embracing in an obvious consensual relationship. Meanwhile, the current or former employee is suing the company alleging that it was an unwelcome and non-consensual relationship. Such information could be very valuable for a company, but very damaging for a plaintiff employee’s case.

Risk of Disclosure

As can be realized by the above scenario, and this is just one example for the purposes of illustration, individuals post many pictures and content on their Facebook pages that they either don’t consider or don’t believe will ever be the subject of a lawsuit. Without the protection of laws or a court decision such as the one in New Jersey, private pages may become public.

The court noted that “[T]he Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view.” Essentially, fishing expeditions are off-limits, but if the information sought is reasonably calculated to lead to information that can be later used at a trial, it may be allowed to be captured by employer defendants.

Employer Tips

From a practical standpoint, what’s the lesson here for employers? If you are an employer, it can’t go without saying that you must have your company’s social media policies in place, which must comply with the most modern standards as the laws are constantly evolving in this fast growing area.

As specifically related to the subject of this article, when defendant companies and their attorneys are making requests for employee’s social media information in the course of a lawsuit, or even in a workplace investigation, such requests should be narrowly tailored and likely to lead to relevant information, not simply used as an intimidation tactic, creating burdensome, unnecessary disclosures, which were intended to be private by the author when made.

Employee Interests

If you are an employee, the point here is that if you are contemplating filing a lawsuit, you may want to reconsider your social media activity, as the potential still remains for an employer to discover that “private” information if it is relevant to the subject matter of the suit (e.g., claiming severe emotional distress but having multiple postings of partying with friends in the Caribbean).

In fact, many employee rights attorneys are now requiring their clients provide them with social media sites to which they belong and passwords, so that the attorney can get the full picture of their client.

Conclusion

Although I dare to use the word “conclusion” with a topic such as social media, which is constantly changing, in conclusion, both employers and employees need to be more conscious in their social media practices, whether it is an employer monitoring employees’ social media use or employees looking for jobs on LinkedIn, tweeting company information on Twitter or posting private information on Facebook or Myspace. Once the information is out there, besides this progressive New Jersey decision, as the phrase goes, “anything you say can and will be used against you in a court of law”.