If a Former Employee Sues, Can You Access Their Facebook Postings?

By Eric B. Meyer

What a whirlwind 12 months it’s been for Edith Employee! Or, should I say, Edith “former” Employee?

Last year, she was an employee for ABC Company. This year, she is suing ABC for sexual harassment. Among other things, Edith claims damages for physical and psychological injuries, including the inability to work, anxiety, post-traumatic stress disorder, and the loss of enjoyment of life.

And right now, we find the parties entrenched in some scorched-earth discovery. ABC Company has just requested “all of plaintiff’s Facebook records compiled after the incidents alleged in the complaint, including any records previously deleted or archived.”

Can ABC do that? Will Edith have to turn over all of these records?

Parameters of a Facebook search matter

Wouldn’t you know that a NY court just dealt with nearly the same set of facts and circumstances?

In Patterson vs. Turner Construction Co., a personal injury action, the New York Supreme Court was asked to review a lower-court decision granting Turner full access to the plaintiff’s Facebook account to review all postings made after the incident alleged in the complaint.

What the lower court overlooked was that discovery into Facebook accounts, email, whatever, is not meant to be a fishing expedition. We’ve seen lawyers try to “friend” litigants. That’s a no-no. But, when Facebook discovery is more narrowly tailored and reasonably calculated to lead to the discovery of admissible evidence, court’s will give the green light.

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As to Turner’s broad discovery request, the New York Supreme Court reasoned that, although some of the post-incident Facebook postings may be relevant, not all of the banalities of Patterson’s life mattered in the context of his action against Turner. Consequently, the NY Supreme Court remanded the case to the lower court to set some tighter discovery parameters. May I suggest something along the lines of:

All online profiles, postings, messages (including, without limitation, tweets, replies, retweets, direct messages, status updates, wall comments, groups joined, activity streams, and blog entries), photographs, videos, and online communications that:

  1. Refer or relate to the allegations set forth in the complaint;
  2. Refer or relate to any facts or defenses raised in the answer;
  3. Reveal, refer or relate to any emotion, feeling, or mental state; or
  4. Reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state.

Attorney Eric Meyer will be leading a group of HR pros in a panel discussion on Social Media in the Workplace – Where is it Today, Where is it Going Tomorrow? at the TLNT Transform conference in Austin, TX Feb. 26-28, 2012. Click here for more information on this event. 

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.


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