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What Happens on Facebook, Stays on Facebook (When It Is Subject to a Discovery Request)

As readers of this blog know, social media evidence, like other electronically stored information, must be preserved when a party “reasonably foresees” or “reasonably anticipates” that it may be needed in litigation.  As a New Jersey federal judge recently made clear, attempts to evade this requirement by deleting social media information may result in sanctions. In Gatto v. United Airlines, Inc., defendants in a personal injury lawsuit sought access to a number of plaintiff’s social networking accounts to find evidence relating to his credibility and his online businesses, which would be relevant to the plaintiff’s damages. Case no. 2:10-cv-01090   (D. N.J. March 25, 2013).  At mediation, plaintiff agreed to change his Facebook password so that he could share his account information with defendants’ counsel. Defendants’ counsel then accessed plaintiff’s account, causing Facebook to alert plaintiff that his account had been accessed by an unknown IP address.   The plaintiff then deactivated… Continue Reading

Texas Bill Would Make Service via Facebook the Law

Texas lawmakers will consider a bill that would specifically allow for service of legal process via Facebook or other social media sites. House Bill 1989 was introduced earlier this week by Rep. Jeff Leach (R – Plano), a recently elected lawmaker and an associate at a Dallas law firm. The short bill provides that a Texas court may permit as a method of service “an electronic communication sent to the defendant through a social media website,” provided the court finds that: the defendant maintains a social media page on that website; the profile on the social media page is the profile of the defendant; the defendant regularly accesses the social media page account; and the defendant could reasonably be expected to receive actual notice if the electronic communication were sent to the defendant’s account. As we have previously noted, courts in Australia, New Zealand and the UK have permitted service… Continue Reading

In re Penthouse Executive Club: Can you Strip Away the Confidentiality of Litigation-Related Communications by Posting Them on Facebook?

If you are a plaintiff in a lawsuit, can you discuss the lawsuit with other plaintiffs on Facebook and keep these communications confidential?  What if the communications are between you and someone you hope will join the lawsuit but is not yet a party?  These questions were front and center before a District Court Judge in New Yorkregarding a class action wage and hour case under the Fair Labor Standards Act (“FLSA”).  In re Penthouse Executive Club Compensation Litigation involves allegations by a group of exotic dancers that the Penthouse Executive Club failed to, among other things, properly pay them overtime and their share of tips.  As often is the case with FLSA matters, the named plaintiffs converted their lawsuit into a class or collective action.  To do so, they obtained from the court the right to issue notice to other similarly situated strippers who were then able to opt… Continue Reading

A Picture is Now Worth 800 Million Users

Facebook’s acquisition of the popular photo-sharing app Instagram portends exciting new opportunities for brands.  As an example of Instagram’s popularity, since December its user numbers nearly doubled—from 15 million users to 27 million users.  Likewise, when Instagram became available on Android, the number of users increased to 30 million, and one million of those users registered within the first 24 hours of availability. So, what does this acquisition mean for brands?  First, not all Instagram users are Facebook users and vice versa.  Obviously, with Instagram’s 30 million users and Facebook’s 800 million users, their integration provides brands with the opportunity to reach significantly more consumers. Moreover, if Instagram remains independent from Facebook, Instagram users will not be limited to sharing their photos on Facebook.  Instead, they will continue to share them on other social networks like Twitter, Flickr, Tumblr, Posterous and Foursquare.  What this means for brands is they will… Continue Reading

Unfashionable Firings: Judge Orders Clothing Store to Rehire Employees Who Lost Their Jobs Based on Facebook Posts.

Can you fire an employee who post on Facebook:  “Hey dudes, it’s totally cool, tomorrow, I’m bringing aCaliforniaworkers rights book to work.  My mom works for a law firm that specializes in labor law and BOY will you be surprised by all the crap that’s going on that’s in violation?”  The employee was one of three workers who had been complaining to store management that the store should shut down an hour early so employees could avoid unsavory street people when exiting the store late at night.  After a heated exchange with store management over the subject, three employees complained about the manager on Facebook and posted about brining the “Californiaworkers rights book,” which the employee did the next day.  According to Administrative Law Judge William G. Kocol of the National Labor Relations Board, clothing retailer Bettie Page Clothing committed an unfair labor practice when it fired these three employees… Continue Reading

More Than Words of Disparagement: Does an Anti-Union Post Have to be Extreme to Go too Far?

In the union context, a significant degree of “vituperative speech” is allowed in the “heat of labor relations.”  For example, an owner of 10 Jimmy John’s sandwich shops in the Minneapolis-St Paul area was subject to an organizing campaign by the International Workers of the World where some disparaging comments were being served on the union.  During the union campaign, various managers and employees set up an anti-union Facebook page, which was open to anyone.  A National Labor Relations Board Judge recently ruled, among other things, that some conduct of management on the Facebook page constituted an unfair labor practice, interfering with an affected employee’s Section 7 rights under the National Labor Relations Act (“NLRA”).  Basically, some managers posted unflattering comments regarding a pro-union employee. The case is Miklin Enterprises, Inc. and Industrial Workers of the World (case numbers 18-ca-19707; 18-ca-19727; and 18-ca-19760) (April 20, 2012).  This is a recent… Continue Reading

Yahoo! v. Facebook: Clicking Through the Blogosphere Bias

Originally posted March 13.  Updated March 28, 2012. On March 12th, Yahoo! filed a patent infringement lawsuit in the Northern District of California alleging that Facebook infringes ten Yahoo! patents.  Immediate reaction has been widely critical of Yahoo!, from interpreting statements made in the filing as a claim by Yahoo! that it “patented the whole idea of Facebook” to characterizing Yahoo! as “relentlessly stagnating as Facebook innovated.”  Such is to be expected from the blogosphere with regard to the party asserting software or Internet-related patents.  However, if one really wants to weigh the merits of this lawsuit and the claims being made about it, there really is no substitute for digging into the subject matter of the patents that Yahoo! claims cover various aspects of how Facebook operates: Yahoo!’s “Advertising Patents” Yahoo! claims protection in systems and methods for advertising, placing advertisements on a web page in a manner according… Continue Reading

Not Cool, School: Middle Schooler Sues over Facebook Search

A Minnesota middle school student has sued her school district, claiming that school staff unlawfully searched her Facebook and e-mail accounts and punished her for a Facebook posting that criticized a school employee, CNN reports. The complaint, which the student filed with assistance from the American Civil Liberties Union, claims that employees at Minnewaska Area Middle School violated the student’s First and Fourth Amendment rights. According to the suit, the 12-year-old student felt that one of the school’s hall monitors was picking on her, so she wrote on her own Facebook wall that she hated that person because she was mean.  The message was not posted from school property or using any school equipment or network, according to the complaint. The complaint also alleges that school employees pressured the student to divulge her e-mail and Facebook login information, which they then used to search her accounts.  The student was given… Continue Reading

British High Court Permits Service Via Facebook: Will U.S. Courts Follow?

By Nick Nelson The Associated Press reports that a High Court Judge in England last week approved the use of Facebook to serve legal documents on a defendant in a commercial dispute. According to the report, the plaintiffs had attempted to serve the defendant at his last known address, but it wasn’t clear whether the individual was still living there.  The defendant’s e-mail address was also unknown. Attorneys for the plaintiffs told the High Court that there was evidence that the defendant’s Facebook account, on the other hand, was active – he had just recently accepted two new friend requests. Under these circumstances, Justice Nigel Teare granted the plaintiffs’ request to serve the defendant via Facebook.  According to Jenni Jenkins, an attorney for plaintiffs who was quoted by the Associated Press, the defendant was given extra time to respond to the claim “to allow for the possibility that he wasn’t… Continue Reading

See No Facebook Speak No Facebook (or Twitter): Interesting Social Media Restrictions in Europe

Recent social media restrictions in two of the world’s more technologically-advanced countries portend possibly similar bans elsewhere of popular social media sites. A German state, Schleswig-Holstein, apparently does not “like” Facebook. In August, Schleswig-Holstein ordered state institutions to delete their Facebook pages and to remove the “Like” button from their websites. If those institutions do not comply, they could be fined. The edict resulted from the Schleswig-Holstein data commissioner’s concern that Facebook builds profiles of users and non-users based on data Facebook collects when someone clicks the Like button. Such a practice, the data commissioner alleged, violates German and European data protection laws. Facebook disagrees with the commissioner’s contention. As reported on pcmag.com, a Facebook spokesperson stated: “The Facebook Like button is such a popular feature because people have complete control over how their information is shared through it.” Moreover, Facebook asserts that the only information the company receives, when… Continue Reading

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