A fascinating article yesterday in Law.com entitled "Are Social Networking Sites Discoverable?" is well-worth a read to any company involved in litigating against former or even current employees.

While the authors write in the context of a product liability case, the premise and subject is equally applicable to claims involving employees as well as the conclusion that information on these sites is likely discoverable:

Although these sites provide users with a sense of intimacy and community, they also create a potentially permanent record of personal information that becomes a virtual information bonanza about a litigant’s private life and state of mind. The converse thus becomes the moral for litigation counsel — this new generational fount of potentially discoverable information should be high on the list of priorities when evaluating a new matter.

As a result, the authors suggest that defense ccourtesy morgue file (binoculars)ounsel use some of these practice tips including running searches on the individuals and witnesses and investigating whether any of the key players use social networking sites.  And if so, ask for information about postings and make a request that such information be preserved. 

I’d add to the list of to-do items, a consideration of a subscription to a site like Spokeo.com.  How does it work? Enter in a person’s e-mail address, and the site will conduct a search (a la Google) of several dozen social networking and information-sharing sites.  Thus, so long as the person hasn’t set their privacy settings to "high", you can find information about the person’s accounts with Amazon (shopping), Flickr (photos), LinkedIn (professional social network) and Myspace (largest social networking).  Importantly, all this information is publicly available to search engines: it’s just that often times people don’t think it is.

The law in this area is still developing, but some of the same discovery rules still apply: Information can still be sought so long as it is likely to lead to the discovery of admissible evidence. And information that is publicly available on the Internet (through Google searches or otherwise) is still fair game — much like old paper files from government resources.

So, as companies defend against discrimination claims, they should not forget that looking at social networking sites like Facebook or MySpace may provide lots of information about the person’s friends, opinions and views. 

You might even find a comment in which the employee talks about the lawsuit.

  • Of course, the age of the key player will probably make a big difference in how effective a spokeo search is.
    I’d be willing to bet that the internet habits of a 15 year-old popular kid and a 45 year-old truck mechanic are quite different.

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