‘But my lawyer told me to delete the Facebook posts!’ LITIGATION

Los Angeles
www.dailyjournal.com
TUESDAY, MARCH 6, 2012
LITIGATION
‘But my lawyer told me to delete the Facebook posts!’
By Caroline H. Mankey
Years after the advent of MySpace,
Friendster, Facebook, and Twitter, mainstream corporate and legal industries are
finally becoming mindful about the opportunities and liabilities that social media affords. Businesses in virtually every industry sector are using the widespread reach
of social media sites to circulate their
messages and attract a wider demographic. In many cases, they are also using their
younger and more technologically savvy
work force to navigate and manipulate the
ever-increasing opportunities.
The increasing use of social websites
for business purposes, and the attendant
activity on those sites by employees for
both business and social purposes, inevitably causes conflict and confusion as to
whether the activity is business-related
for the employer or social networking
for the employee. If an employee who is
an administrator of the company’s Twitter account spends work hours increasing
the number of the employer’s followers
on Twitter, is she entitled to take over the
account or each of the followers after she
Associated Press
A screen shot of Facebook’s privacy settings.
take over the account when she leaves her
partnership? If she was only one partner
who formed, administered, provided content for, and conducted all other activity
on the account, does she have a greater
claim to take over the ac[The court] found that the lawyer and the client count than the remaining
partners or partnership?
had spoliated evidence by removing Facebook
Questions like these that
posts, and imposed sanctions of $542,000 against
are raised by the increasing
the lawyer and $180,000 against the client.
use of social media have
resulted in a proliferation
terminates her employment? Probably of social media policies. These policies
not, as the account belongs to the employ- frequently address a wide range of issues,
er. Is she allowed to copy the list of all including conducting social media activity
the followers and solicit them to follow on business time and equipment, etiquette,
her personal Twitter feed? Probably, as truthfulness, confidentiality, defamation,
the followers of a Twitter feed are posted harassment and infringement of copypublicly on the site and thus cannot likely rights, trademarks and rights of publicity,
be the subject of any trade secret protec- protecting the company’s and employee’s
tion on the employer’s behalf. See Erik reputation or professional image, and the
S. Syverson, “Is social media entitled to use of social media as a research tool for
trade secret protection?,” Daily Journal, business purposes.
Feb. 13, 2012, at 4.
For example, businesses who use social
But what if it is a partner who wants to media to research candidates for potential
employment may be exposed to information that they would not be permitted to ask
about in an interview (such as ethnic background, age, marital status, or pregnancy),
from which it could be inferred that a hiring decision was made on an impermissible
basis. See http://management.fortune.cnn.
com/2011/03/02/checking-out-job-applicants-on-facebook-better-ask-a-lawyer/.
On the other hand, the Web is rife with
cautionary tales about people who have
lost jobs as a result of careless, snarky, or
outright malicious posts on Facebook and
Twitter, making it a useful tool for businesses to weed out employees who are
careless, thoughtless, or abusive. See http://
www.huffingtonpost.com/2010/07/15/
fired-over-twitter-tweets_n_645884.
html#s113174&title=Hospital_Employee_Violates.
Similarly, employees of investment
firms and other financial institutions need
to be aware of posting seemingly innocent
commentary that could be deemed to be
corporate communications or insider information. See http://finance.fortune.cnn.
com/2011/03/08/that-facebook-commentfrom-your-broker-the-sec-is-reading-it/.
Lawyers, of course, have to exercise
caution when posting material that could
reveal attorney client privileged information. Prudent lawyers should warn their
clients about posting on social media
websites in light of various risks, such
as revealing confidential information that
could be used against them in criminal
or civil cases or when seeking disability
benefits or employment. When clients fail
to follow this advice, some lawyers might
counsel their clients to remove previously
posted comments or photographs or even
suspend their social media accounts and
all related activity altogether.
For instance, in his eDiscovery blog on
Nov. 15, 2011, John Patzakis describes the
court’s findings in the unreported case of
Lester v. Allied Concrete Co., Circuit Court
of the city of Charlottesville, Virginia
Case Nos. CL08-150 and CL09-223: “The
court’s findings reflect that Murray told
his client to remove several photos from
his Facebook account on fears that they
would prejudice his wrongful death case
brought after his spouse’s fatal automobile
accident. One of the photos depicts the allegedly distraught widower holding a beer
and wearing a t-shirt emblazoned with ‘I
[heart] hot moms.’ Murray instructed his
client through his assistant to ‘clean up’ his
Facebook account. ‘We do not want blow
ups of other pics at trial,’ the assistant’s
email to Lester said, ‘so please, please
clean up your Facebook and MySpace!’”
http://blog.x1discovery.com/2011/11/15/
facebook-spoliation-costs-lawyer-522000
-ends-his-legal-career/
Though this advice might seem reasonable, the court did not think so at all.
Instead, it found that the lawyer and the
client had spoliated evidence by removing
Facebook posts, and imposed sanctions of
$542,000 against the lawyer and $180,000
against the client for the fees and costs incurred by the opposing parties who were
prejudiced by the spoliation.
The Lester case, as well as other recent
developments in case law, suggest that
lawyers need to start treating social media
posts as any other form of electronically
stored information, which must be preserved from spoliation for litigation. Par-
ties who know that litigation is pending or
probable are obligated to preserve litigation evidence when harm or prejudice is
likely to be caused if the evidence were
to be discarded. Sanctions for spoliation
can include issue or terminating sanctions,
suppression of evidence, an adverse inference, and/or attorney fees and costs.
In contrast to the Lester court, a District
Court in New Jersey imposed a far more
reasoned remedy for the removal of Facebook posts. In Katiroll Co. Inc. v. Kati
Roll and Platters Inc., the court found that
the defendant’s removal of photographs
showing infringing trade dress from his
Facebook page was “somewhat prejudicial” to the plaintiff. 2011 WL 3583408
(D.N.J.) at 4. However, instead of imposing a harsh issue, evidentiary, or monetary
sanction, the court ordered that: “[Defendant] must to coordinate with Plaintiff’s
counsel to change the picture back to the
allegedly infringing picture for a brief
time so that Plaintiff may print whatever
posts it thinks are relevant — such action
shall not be considered an additional act
of infringement. The Court however, determines that it is incumbent on Plaintiff
to, during the appointed time, print such
posts as it thinks are necessary to make its
case. Thereafter, [Defendant] must immediately change his profile picture back to
his noninfringing picture.”
Given that electronic evidence almost
never can be totally destroyed, particularly when posted in a public or semi-public
medium, when faced with claims of spoliation of social media evidence, courts will
likely follow the lead of the New Jersey
District Court in crafting practical remedies to offset any prejudice that might be
caused. Nonetheless, practitioners should
be cautious about advising their clients to
“clean up” their social media pages. When
in doubt, printing and saving a copy of a
screen shot before deleting a potentially
relevant post will likely satisfy the preservation obligations.
Caroline H. Mankey is
a partner at Cypress LLP
in West Los Angeles. She
represents entrepreneurial
clients in the entertainment industry and business
community, in matters
involving publicity rights,
invasion of privacy, copyrights, trademarks,
trade secrets, defamation, First Amendment
rights to free speech and of fair use, partnership obligations and rights, contractual
obligations, interference with business opportunities, sexual harassment allegations and
contests over ownership rights in real estate
and other property.
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