Social Media Issues Entering Litigation Process Says Stuart Buttrick

Millions turn to Facebook and Twitter to constantly update friends and family about what's happening in their personal and professional lives. But as those instant updates become a staple in people's lives, those social media networks are becoming a more common part of the litigation process in state and federal courts, Indiana Lawyer reported in its story, "Anything You Tweet May Be Used Against You."

In an Indiana employment sexual harassment case earlier this year, the story reported, U.S. Magistrate Judge Debra McVicker Lynch allowed the defense to have broad access to the plaintiffs' social network sites as discovery about their mental states and held specifically that any privacy concerns by the employees about releasing a full array of online social media information were overridden by the fact that plaintiffs had already shared the information "with at least one person."

"Her order is very interesting and certainly very timely, because if we haven't already, we all are going to have to start dealing with social media discovery issues more in the future," Stuart Buttrick of Baker & Daniels told Indiana Lawyer. "This is a really big deal and the first of its kind in our jurisdiction."

At Baker & Daniels, Buttrick and his colleague, Krissy Katzenstein, wrote a legal advisory about the order once it came out in May, and they have been contacted by attorneys, writers and bloggers about it since then, according to the Indiana Lawyer story.

"This wasn't a garden-variety emotional distress but more severe, and there's no application at this point beyond the most severe of these types of employment cases," Buttrick told Indiana Lawyer. "But her holding and rationale is equally applicable to less severe cases where someone may be less traumatized at a particular time, and it's something that everyone should keep in mind. It can be helpful or hurtful depending on what side of the fence you're on."

Though it goes in the company's favor, the ruling should also be viewed as a "warning shot" because it could easily be applied against a defendant in the future, Buttrick said in the story. Defense attorneys should be advising their clients to review their conduct and policies on social networking, and those of their employees. They need policies that put management and employees on notice about what's acceptable in the workplace, and possibly even in personal and off-duty settings if those might influence the workplace, Buttrick told Indiana Lawyer.