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Social Media and Employment Litigation Analyzing Recent Case Law, NLRB Activity and E-Discovery Challenges
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WEDNESDAY, AUGUST 8, 2012
Presenting a live 90-minute webinar with interactive Q&A
Jeffrey E. Gross, Partner, Vandenberg & Feliu, New York
Christopher D'Angelo, Attorney, Vandenberg & Feliu, New York
Stephanie L. Giammarco, MA, CPA, CITP, CFE, CFF, Partner, BDO Consulting, New York
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Social Media and Employment Litigation:
Analyzing Recent Case Law, NLRB Activity
and E-Discovery Challenges
Jeffrey Gross, Vandenberg & Feliu, LLP
Christopher D’Angelo, Vandenberg & Feliu, LLP
Stephanie Giammarco, BDO Consulting
LAWLINE.COM
Page 6
Webinar Overview
I. Litigation update concerning privacy and ownership issues
Jeffrey Gross, Esq.
II. NLRB Activity update
Christopher D’Angelo, Esq.
III. E-discovery challenges
Stephanie Giammarco, CPA.CITP, CFE, CFF, CEDS
Page 7
Litigation Update
I. Litigation Update --- Jeffrey Gross, Esq.
A. Employee’s reasonable expectation of privacy/Quon
B. Waiver of Privilege/Stengart
C. Ownership/PhoneDog and Eagle
D. Privacy Update
E. Drafting and Implementing Social Media Policies
Page 8
Social Media Litigation:
A. Employee’s Reasonable Expectation of Privacy?
City of Ontario v. Quon, 130 S.Ct. 2619 (2010).
o SWAT team employee used government-issued pager for texting
o Supreme Court addressed 4th Amendment issue
o District Court: -Reasonable expectation of privacy
-Reasonable search
o Ninth Circuit: -Reasonable expectation of privacy
-Reasonable purpose, unreasonable search
o Supreme Court: -Assumed reasonable expectation of privacy
-Search motivated by legitimate work-related purpose
and not excessive in scope.
Page 9
Quon’s application to social media litigation and
privacy
o Supreme Court:
Assumed reasonable expectation of privacy existed
Did not want to opine about the use of technology
o Justice Kennedy’s decision suggests relevance of:
How widespread the technology is
How it is used
o Lessons learned from Quon about monitoring employee data:
Quon involved sampling of employee data
City did not review texts sent after hours
o Implications for design and execution of social media policy
Page 10
Social Media Litigation:
B. Waiver of Privilege?
Stengart v. Loving Care, 990 A.2d 650 (N.J. 2010)
o Employee communicated with her lawyer over webmail on company laptop
o Trial court: - Privilege was waived
o Appellate Division: - Reversed
- Company violated RPC 4.4(B) by reading emails
o N.J. Supreme Court: - Modified and affirmed, reasonable expectation of privacy
- Company policy ambiguous with respect to webmail
Page 11
Stengart’s application to social media litigation
and privacy
o Would there have been a waiver of privilege if:
Company policy informed employees about temporary Internet files?
User password stored on the company laptop?
Emails at issue did not involve attorney-client privilege?
o Ethical issues
o Implications for social media policies
Page 12
Social Media Litigation:
C. Ownership of Social Media Accounts
PhoneDog v. Kravitz, 2012 WL 273323 (N.D. Cal. Jan. 30, 2012)
Ownership of “PhoneDog” Twitter account
Employee developed 17,000 followers during employment
Employee continued to use post-employment; dispute this was permissible
o Claims for trade secret misappropriation and conversion survived motion to dismiss
but:
Intentional and negligent interference claims were dismissed, at first. See 11-
03474 (N.D. Cal. Nov. 8, 2011).
Amended Complaint filed. These claims survived subsequent motion to dismiss.
Page 13
PhoneDog’s application to social media litigation
and privacy
Questions:
o What is the secret?
California law says “customer list” is a trade secret when efforts made to
keep it a secret. Can the account password be a trade secret?
Information on social media sites and accessible to the public is not a
trade secret. See Sasqua Group, Inc. v. Courtney, 2010 WL 3613855
(E.D.N.Y. Aug. 2, 2010)
o What are the “improper means” at issue for trade secret claim?
Company alleged harm to relationship with advertisers due to fewer page
views
Page 14
Social Media Litigation: Ownership of LinkedIn
Account
Eagle v. Edcomm, 2011 WL 6739448 (E.D.Pa. Dec. 22, 2011)
o Plaintiff shared personal LinkedIn account password with colleagues so that they
could conduct business.
o Plaintiff was fired, company changed password and refused to relinquish the
account.
o Disclaimer
o Decision on motion for judgment on pleadings against counterclaims
Conversion claim by employer dismissed
Trade secret claim dismissed
“Idea misappropriation” claim survived
Other affirmative claims by Eagle still in play
Page 15
Eagle’s application to social media litigation and
privacy
o Implications and distinctions
Role of user agreement
Relevance that Eagle was officer, shareholder, and director?
Relevance of alleged company informal policy to maximize use of LinkedIn
o Damages issues
Statutory damages
Fact-intensive nature of damages claims. See Maremont v. Susan Fredman Design
Group, Ltd., 2011 WL 6101949 (N.D.Ill. Dec. 7, 2011)
Page 16
Social Media Litigation:
D. Case Law and Regulatory Update on Privacy Marcus v. Rogers, A-2937-09T3, 2012 WL 2428046 (N.J. Super. Ct. App. Div.
June 28, 2012).
Teachers’ emails on webmail, left open on a computer, accessed and disseminated.
Claims under N.J. “Computer-Related Offense Act” and wiretapping statute.
Access “without authorization” or “exceeding authorization”?
Survived summary judgment but defense verdict
o Stored Communications Act, §18 U.S.C. 2701, et seq.
Extent of authorization: E.g., Pure Power Boot Camp, Inc. v. Warrior Fitness Boot
Camp, LLC, 587 F.Supp.2d 548 (S.D.N.Y. 2008); 759 F.Supp.2d 417 (S.D.N.Y. 2010).
o Actual and pending legislation to bar employers from demanding social media
passwords.
Page 17
E. Drafting and Implementing Social Media Policies:
Privacy and Ownership Concerns
o Constituencies involved in drafting
o Address key legal risks
o Communication of policy
o Not a one-size-fits-all
Page 18
NLRB Activity update
II. NLRB Activity update --- Christopher D’Angelo, Esq.
o NLRB Acting General Counsel has issued 3 Reports on Social Media
and Employer Compliance with NLRA:
August 2011: OM-11-74
January 2012: OM 12-31
May 2012: OM-12-59
Page 19
Summary:
o 33 fact patterns addressing:
The “protected, concerted” nature of Facebook or Twitter postings,
and/or
The legality of Employer Social Media Policies
NLRB Activity update
Page 20
o What is the import of a “Report” from the Acting General Counsel of
the National Labor Relations Board?
o What lessons can we learn from reviewing these Reports?
NLRB Activity update
Page 21
o Coverage of the National Labor Relations Act is not limited to
unionized employees.
o 2 main issues with NLRA:
The rights of “employees” under the NLRA
Definition of “employee”
NLRB Activity update: Lesson No. 1
Page 22
o The NLRB’s Acting General Counsel is interpreting the protections of
the National Labor Relations Act very broadly when it comes to
employee communications on social media sites.
NLRB Activity update: Lesson No. 2
Page 23
o The meaning of “protected, concerted activity” under the NLRA.
o “Protected” conduct:
Wages
Hours
Other terms and conditions of employment, including criticism of supervisors.
o Cases:
Arrow Electronics, 323 NLRB 968 (1997), enfd., 155 F.3d 762 (6t Cir.
1998);
Datwyler Rubber and Plastics, Inc., 350 NLRB 669 (2007) (protesting
supervisor’s actions)
NLRB Activity update: Lesson No. 2
Page 24
o “Protected” conduct can lose the protection of the Act:
Atlantic Steel, 245 NLRB 814 (1979)
NLRB v. IBEW Local 1229 (Jefferson Standard), 346 U.S. 464 (1953)
NLRB Activity update: Lesson No. 2
Page 25
o What is “concerted activity” under the Act?
o The Myers cases:
Myers I, 268 NLRB 493 (1984), revd., sub nom. Prill v. NLRB, 941 (D.C.
Cir.), cert. denied, 474 U.S. 948 (1985);
Myers II, 281 NLRB 882 (1986), affd. sub nom., Prill v. NLRB, 835 F.2d
1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988)
NLRB Activity update: Lesson No. 2
Page 26
o How are these standards applied to employee use of Social Media?
OM 11-74
- The “uncharitable” not for profit employees (using profanity and
sarcasm when using Facebook to comment on a supervisor) (p. 3)
- The Critical Car Salesman (p. 6)
- The Sloppy Sports Bar (p. 9)
NLRB Activity update: Lesson No. 2
Page 27
OM 12-31
- The insolent Administrative Assistant (p. 18)
- The Vocal Veterinarians (p. 20)
- The Pejorative Popcorn Packager (p. 22)
o The “hybrid” Atlantic Steel/Jefferson Standard test
NLRB Activity update: Lesson No. 2
Page 28
o Are there any situations where social media posts are not deemed
“protected, concerted” activity?
Six or seven examples in the Reports
OM 11-74, pp. 14 through 17
OM 12-31, pp. 6, 9 and 10
NLRB Activity update: Lesson No. 2
Page 29
o A Social Media Policy which outlines acceptable use of social media,
and prohibits certain conduct, does not necessarily save the day for
employers.
NLRB Activity update: Lesson No. 3
Page 30
o The Lafayette Park Hotel Test:
326 NLRB 824 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999)
o The Lutheran Heritage Village-Livonia Test:
343 NLRB 646 (2004)
NLRB Activity update: Lesson No. 3
Page 31
o Just beginning to scratch the surface
o Dilution of “at-will” employment in the non-union setting
o Waiting to hear from 5-member Board and, ultimately, the courts
NLRB Activity update: Conclusion
Page 32
E-Discovery
III. E-discovery challenges --- Stephanie Giammarco, CPA.CITP, CFE,
CFF, CEDS
A. Back to the Basics – E-Discovery Rules Apply!
B. Obtaining the evidence
C. Forensic analysis of evidence
D. Non-forensic evidence
Page 33
E-Discovery:
A. Back to the Basics
Definition of social media –
•Noun ( usually used with a plural verb ) Computers . Web
sites and other online means of communication that are used
by large groups of people to share information and to develop
social and professional contacts1
•Social media includes web- and mobile-based technologies
which are used to turn communication into interactive
dialogue among organizations, communities, and individuals2
1 – Dictionary.com 2 – Wikipedia.com
Page 34
E-Discovery:
A. Back to the Basics
o E-Discovery Rules Apply to Social Media
Reasonably anticipated litigation
Duty to Preserve
o Social Media evidence used in many civil and criminal cases – Twitter,
Facebook, LinkedIn…
o Social Media evidence is used in almost all types of litigation, including
employment litigation
Page 35
E-Discovery:
B. Obtaining Evidence
o Where to look - EVERYWHERE!
Current sites
Corporate backup systems/Yammer
Mobile Devices
iPads
iPhones
Computers
Page 36
E-Discovery:
B. Obtaining Evidence
o What can be found on devices?
Social Media evidence
Everything else….
- GPS – Time/place coordinates
- Text messages
o Other people’s devices…
Page 37
E-Discovery:
B. Obtaining Evidence
o Challenges
Username/passwords
The providers aren’t cooperating…
Timing/Does evidence still exist?
Identification
Preservation
Page 38
E-Discovery:
C. Forensic Analysis of Evidence
o Just one piece of the puzzle…
o Email x10
o Complex evidence for forensic examination
Page 39
E-Discovery:
C. Forensic Analysis of Evidence
o Accessing and understanding this evidence is often challenging
because:
Not always easily identifiable
Need to be recovered
May require conversion/analysis before it can be read; and
Page 40
E-Discovery:
C. Forensic Analysis of Evidence
o Challenges Cont:
Handhelds are more frequently used now and store less evidence
May not maintain conveniently or readily available date and time
information.
- Review metadata from pictures, etc. to determine date/times
Page 41
E-Discovery:
D. Non-Forensic evidence
o Social Media review for Investigative Due Diligence:
New employee screening
Company intranets
Pre-litigation research
Opposing expert/party research
Juror research
Authentication
Page 42
Thank you from the presenters
Jeffrey Gross, Esq.
Vandenberg & Feliu, LLP, [email protected]
Christopher D’Angelo, Esq.
Vandenberg & Feliu, LLP, [email protected]
Stephanie Giammarco, CPA.CITP, CFE, CFF, CEDS BDO Consulting, [email protected]
