When a discrimination or similar complaint is filed against a company, an attorney may use social media as a tool when mounting a defense.
Anne E. Larson, a principal at Much Shelist and head of the labor and employment practice, said when a lawyer prepares to depose the plaintiff he or she may use sites like Facebook to learn as much as possible about the person.
There could be comments about the case, or photos and other information that provide a very different side of the story from what the plaintiff is sharing, she said.
She said social media tools can be used to evaluate the credibility of the plaintiffs.
“When I am defending a case and taking a deposition you are really trying to get to the heart of whether these claims are valid,” Larson said. “[Social media] is an additional help from time to time.”
Employers should be careful how they use social media tools, she said. For example, Larson cites Pietrylo v. Hillstone Restaurant Group.
According to the Employer Law Report produced by Porter Wright Morris & Arthur, it’s a case that has been widely followed by employment lawyers in the hope of gaining clarity as to employees’ privacy rights on personal social media sites.
The federal district court in New Jersey recently upheld the jury’s verdict finding Hillstone Restaurant Group liable for violations of the Stored Communications Act and New Jersey’s parallel electronic surveillance statute.
In Pietrylo v. Hillstone Restaurant Group, according to the Employer Law Report, two employees created a MySpace page that they used to air their grievances against their employer in a password-protected environment and invited other employees — but not managers — to join. At some point, a manager learned of the site and its sometimes-profane content when one of the invited employees showed him a posting from it. The manager told another and then the two of them twice requested the employee’s log-in ID and password to the site. Eventually the employee gave them the information and the managers logged into the site a few times before firing the site’s creators.
“The central issue at trial was whether the employee was coerced into giving the managers her log-in ID and password information to permit them to enter the site,” according to the Report.
Larson also warns lawyers to be careful when they join sites like LinkedIn because the Illinois Rules of Professional Conduct prohibits lawyers from holding themselves out as specialists.
“I think social media is very interesting and a very interesting resource, but it’s a trap for the unwary,” Larson said. “You have to be careful how you use it so as not to cause yourself more trouble.”