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Using Social Media Content to Defend Employment-Related Lawsuits

By Jessica Neufeld and David S. Weber

For much of America, exposure to some type of social media is a part of everyday life. Fifty-seven percent of all American adults use Facebook ' the most preferred social networking site (or SNS) ' and 52% of Internet users who do not use Facebook live with someone who does. Sixty-four percent of Facebook users visit the site on a daily basis. Reasons for such use include viewing photos or videos, sharing things with many people at once, receiving support from people in their network, getting feedback on content they have posted, and keeping up with news and current events. (See, “6 New Facts About Facebook,” Feb. 3, 2014; Pew Research Center, “Social Media Update 2013,” Dec. 30, 2013.)

Because social media is a major vehicle for interacting with the world and exchanging information, it is no surprise that such a ubiquitous aspect of American culture would contain information relevant to litigation. It is therefore important that attorneys be able to recognize when and how social media content may provide valuable evidence in a case. Indeed, the Model Rules of Professional Responsibility suggest it is an attorney's obligation to become familiar with social media technology and the benefits and risks of its use. See, Model Rules of Prof'l Conduct Rule 1.1 cmt. This article looks at how to request social media content in discovery as well how best to preserve and collect such content in the context of employment litigation.

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