JDs Rising

By Francis Rojas

In today’s technology age, it is often common for people to connect via the Internet.  Especially through the medium of social networking sites, such as MySpace and Facebook.  The age of anonymity is long gone, captured instead by a wide variety of cloud computing servers that save all drafts, messages, and anything that was deleted.

It is therefore, not uncommon for employers to Google your name, and try to find as much information as they can about you.  So if you have a Facebook account, you definitely want to make sure it looks spotless.

But that is not the end of the worries.  Making a profile private or deleting unwanted messages/pictures may keep these hidden to a regular viewer.  However, it is important to note that everything is kept by a multitude of servers that save everything in the cloud.  So what warning should we take heed on?  Be careful of what gets up there, and make sure you know what your client puts up there too!

I came across the following case allowing the defendant company to obtain SMS discovery of Facebook and other social networking sites.  EEOC v. Simply Storage Mgmt., LLC, No. 1:09-cv-1223-WTL-DML (S.D. Ind. May 11, 2010).  Even though it is not a Minnesota case, it warrants review because of the novelty of electronic discovery.

In an employment case for sexual harassment, the court determined that the proper scope of relevance was “any profiles, postings, or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) and SNS applications for claimants… that reveal, refer, or relate to any emotion, feeling, or mental state, as well as communications that reveal, refer, or relate to events that could reasonably be expected to produce significant emotion, feeling, or mental state.”  The court also required the production of third-party communications to the claimants “if they place these claimants’ own communications in context” and the production of photographs of the claimants “because the context of the picture and the claimants’ appearance may reveal the claimant’s emotional or mental status.”  Pictures depicting someone other than the claimants were acknowledged as “unlikely to fall within the definition set out above.”

That holding clearly made it present: Everything on social networking sites is fair game.  So next time, you update your Facebook status or put up pictures online keep that in mind.  Similarly, be sure to ask your client about what he/she is doing in social networking sites.