Cases Illustrate Creative Uses Of Social Media Evidence

As Internet communications quickly replace the use of pen and paper, the field of electronic discovery continues to increase in importance. Many articles have been written about the ability to request and receive electronic discovery including various forms of social media—such as information from Facebook, LinkedIn, Myspace, Twitter and Instagram.

However, the right to obtain discovery and its actual use to support a claim or defense are two very different battles. In the employment law context, once an employer has obtained social media evidence (whether through discovery or from its own investigation) the question becomes: How is this evidence actually used—if at all—in the course of litigation? Several recent cases around the country have demonstrated unique or creative ways in which social media evidence has been used to either support or defend a claim of employment discrimination.

Litigators representing employers should consider ways in which they can use social media evidence to demonstrate that the employer had a reason to terminate or discipline the employee and that the stated reason was not pretexual. For example, one employer used social media evidence to support its claim that it terminated an employee due to her failure to follow office procedure, when she had an opportunity to do so, and not because of any discriminatory motive. In Tabani v. IMS Associates, an x-ray technician claimed that she was discriminated against based upon her sex in violation of Title VII of the Civil Rights Act of 1964.1 The employee informed her employer that she was being hospitalized on Jan. 3, 2011, due to pregnancy complications, and thus, would be absent from work. The employee was admitted and did not communicate with her employer again until Jan. 6, 2011. On Jan. 7, 2011 the employee informed her employer that she was being released, at which time the employer notified her that she was being terminated. The employee claimed that by this conduct "[s]he was singled out for termination on account of her pregnancy."2 The employer moved for summary judgment, arguing that the employee was terminated because she violated company policy when she failed to inform her employer of her absences on January 4, 5 and 6. In order to demonstrate that the employee could have informed her employer of her absence despite being admitted to the hospital, the employer submitted Facebook screen captures of the employee's "posts" during the relevant time frame.

Although the Nevada District Court found that a material issue of fact existed as to whether or not the employee failed to adhere to the employer's policy and as to whether or not the employee performed her job responsibilities in a satisfactory fashion,3 this creative strategy and use of social media evidence demonstrates how an employer may use an employee's posts as powerful evidence regarding material factual issues during a relevant time frame.

Similarly, Facebook posts on social media websites have been used to demonstrate an employee's ability to access the Internet during a relevant time frame, and thus, as evidence that the employee had the ability to retrieve information concerning company policy. This strategy proved to be successful in Odam v. Fred's Stores of...