Everything you say, post, IM, tweet, or text may be used against you, or your employee.
Social media evidence has changed the landscape of discovery in employment law cases. If an employer suspects an employee is lying, engaging in FMLA abuse, or hunting for a new job, the admission might be in cyberspace. With more than 500 million users on Facebook alone, chances are that the employee has a social media account. Whether Facebook, Twitter, MySpace, LinkedIn, or plain old texting, social media users are uninhibited when it comes to broadcasting their thoughts, pictures, and videos to the world. Those broadcasts can get the unscrupulous worker in big trouble.
The evidence comes with dates, time stamps, and even embedded information that users may not even know about. For example, many cell phone cameras now digitally stamp each photo taken with precise geographical data (“geotagging”). As discussed at a UC Davis Panel, this content is being used as evidence, and the evidence lasts virtually forever.
According to a discovery order in EEOC v. Simply Storage Mgmt., LLC, even if the account is “private,” the information on a litigant’s social media Web sites can be used in a lawsuit.
Simply Storage, a sexual harassment case, included a claim for severe emotional distress. The judge reasoned that social media, whether written text or pictures, might reveal information about the emotional state of the claimants. Therefore, the judge allowed discovery of social media content that revealed “emotions.” The allowable discovery was not limited to content that directly mentioned emotions, but also included communication that referred or related to events that normally “produce a significant emotion, feeling or mental state.” Specifically, that includes relevant “verbal communications” (wall posts, status update, comments, groups or causes joined, activity streams, and blog entries), third-party communication, photos, and videos. To preserve the privacy of the parties, the court issued a protective order limiting the disclosure of the information only to those involved in the lawsuit.
Social media is now used as evidence in all areas of law. People have posted pictures resulting in gun possession charges, updated statuses confirming drug use, and tweeted their way to divorce. The door to this new area of discovery is open, and employers can take advantage of it.