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. Reprinted for web use with permission from the Daily Journal. ©2012 Daily Journal Corporation. All rights reserved. Reprinted by Scoop ReprintSource 1-800-767-3263