"Friends" in High Places: Social Networks, Lawsuits and Friending Judges

 

"You ain't never had a friend like me." Lyric by Howard Ashman from Disney’s Aladdin,© 1992

     Wanna be friends with a judge? Well, he might end up “friending” you on Facebook as part of an in-camera review of your page, if something you post may be relevant to a lawsuit.

     Imagine that you are a middle management corporate employee who has finally (urged on by your kids) joined the 21st century and launched a personal Facebook page.  And then you friended a bunch of people, including some neighbors, family, and some of your fellow employees and supervisors. Why not?  After all, you have a pretty good relationship with them.

     Over the next few months, the following occurs:

  • You post that your supervisor is an idiot who doesn’t pay any attention to what’s going on in the office.  The next day some receivables go missing, and now the boss suspects you. How did he find out?  Perhaps you friended him and simply forgot; perhaps you friended another employee who is friends with your boss.  Or perhaps you simply forgot to change your privacy settings.
     
  • You are sued by an employee who you friended a while back.  Why? You fired him two weeks ago because the employee’s Facebook page showed him skiing on the day he called in sick.
     
  • You posted derogatory comments about your horrible neighbors.  A week later someone vandalized their house, and now they are blaming you.

     According to an article in the DRI Defense Bar by Michael Goodfried and Martha Dawson, Electronically Stored Information (“ESI”) contained on a party's social networking site can be subject to discovery if it relates to the issues in the litigation. In EEOC v. Simply Storage Mgmt., No. 1:09-cv-1223-WTL-DM, 2010 WL 3446105, at *3, (S.D. Ind. May 11, 2010), the court stated that discovery of social networking sites "requires the application of basic discovery principles in a novel context", and that the challenge is to "define appropriately broad limits . . . on the discoverability of social communications."

     Once it’s been determined that the content on the social networking site is subject to discovery, the next element is to determine which particular content is discoverable, based on the court’s consideration of the relevance of the requests within the scope of Rule 26 - or whether the requesting party is on a fishing expedition. “The court may choose to order the user to provide access to their entire profile, or it may order access to a limited portion of the content, such as wall postings available to all of the user's contacts, or messaging with particular individuals. In at least one instance, the court has offered to provide an in camera review by becoming "friends" with the user in order to review the private content for relevancy, before making a decision as to whether the other side could see it. Barnes v. CUS Nashville, No. 3:09-cv-00764, 2010 WL 2265668, at *1 (M.D. Tenn. June 3, 2010).”

    Shazzam! Instant friendship with a judge!

     Courts may also examine the privacy policies of the social networking sites themselves. Many of these sites explicitly state that they do not guarantee the privacy of user content. For example, Facebook's privacy policy, as of October 5, 2010, states that "some of the content you share and the actions you take will show up on your friends' home pages and other pages they visit" and that Facebook may "disclose information pursuant to subpoenas, court orders, or other requests (including criminal and civil matters) if we have a good faith belief that the response is required by law." See Facebook's Privacy Policy. In Romano v. Steelcase, 907 N.Y.S. 2d 650, 655 (2010), the court went so far as to state that the plaintiff has no reasonable expectation of privacy "notwithstanding her privacy settings" because Facebook and MySpace did not guarantee "complete privacy."

     So before you post that your assistant is a moron and get sued for defamation, consider whether you really want to friend a judge.

     The Social Network…coming soon to an in-camera review in a courtroom near you.

Brave New World

"When the individual feels, the community reels."
                              - Aldous Huxley, Brave New World

 

As we all adapt to the “Brave New World” where one’s every thought or utterance can be instantly broadcast to hundreds, thousands, or millions of people via Facebook, Twitter and other social networking media, it stands to reason that some of these electronic “feelings” will impact the legal community and the way electronic information is used in litigation.

 

Despite his fictional view of the future, it’s hard to imagine that Huxley could have foreseen our current environment of lightning-fast relay of stream-of-consciousness meditations. As a primary example, Hadley Jons, a juror in Mount Clemens, Michigan, was removed when it was discovered that she had posted on Facebook that it was going to be “fun to tell the defendant that they’re guilty.”  Naturally, the fact that the trial was not over and the defense had not even begun presenting its case presented more than a little problem . . . 

 Ed White, reporting in The Huffington Post article Juror Hadley Jons Punished For Posting Verdict On Facebooknoted that the posting came to light only because the defense attorney’s son, who was working in his mother’s law office, checked the jurors against Facebook. The judge removed the juror the following day.  Though Ms. Jons apologized, the judge ordered her to write a five-page essay about the constitutional right to a fair trial.

So, in addition to the layer of electronic discovery issues already creating new ways to build and analyze a case, attorneys are now realizing that they will need to review and then monitor electronic social media to make sure that their client gets a fair trial. 

 

As for the rest of us, it’s wise to think of our social media postings in light of one of a favorite quote from Facebook: “If you have the capacity to learn from your mistakes, you will learn a lot today.”