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Facebook Evidence May Be Discoverable: Ask For It! (Preserve It!)

[May 13, 2013]  A federal judge in New Jersey recently sanctioned a plaintiff for deleting his Facebook account, which purportedly contained photographs and other information that contradicted his personal injury claims against the defendants.

The plaintiff had agreed, as part of discovery, to provide the contents of his Facebook account.  Instead, he deleted it.

As a sanction, the court agreed to provide a spoliation instruction at the trial, instructing the jury that it may draw an adverse inference from the plaintiff’s destruction of the evidence.

The decision serves as a reminder that employers should seek discovery of from the Facebook and other social media accounts of plaintiffs in employment litigation.  (Ask for it!)

It is also a reminder to businesses that they must ensure that their managers and other decision-makers do not destroy such evidence, if it exists.  (Preserve it!)

Social Media and the NLRB

[March 29, 2013]  The Firm recently published an article detailing various employer social media policies that the National Labor Relations Board (“NLRB”) is likely to view as violating employees’ rights under federal labor law.  (Click here to read the article.)  Employers should be aware that a social media policy can be found unlawful even if the employer is not unionized, and even if no employee has ever been disciplined for violating the policy.

The New York Times recently featured a news story on this same topic.  The upshot of the NLRB’s recent activity in this area is that employers should review their social media policies very carefully, in consultation with labor counsel, and revise them as necessary to minimize the risk of NLRB challenges.

2012 Is Here! Time To Review And Update Your Employment Policies

This year, it is especially important for employers to review their employee handbooks to ensure that they are both legally compliant and up to date with current practices.  Numerous changes in federal and state employment laws have taken place over the past year and are slated to become effective in 2012, requiring employers to act now.  Read more.