Post authored by Max Barack
For better or for worse, most young lawyers have grown up with extensive access to social media. It is doubtful that many thought the countless hours spent scrolling through their friends’ Facebook timelines or Instagram posts would be useful professionally. But that working knowledge of social media is crucial for lawyers representing victims of harassment and discrimination. It is important to use the knowledge of how social media sites work to protect your discrimination client’s information and advocate on their behalf.
According to a 2018 Pew Research Center article on social media use, approximately two-thirds of all American adults now report using Facebook. Aaron Smith & Monica Anderson, Social Media Use in 2018 Pew Research Center: Internet, Science & Tech (2018), http://www.pewinternet.org/2018/03/01/social-media-use-in-2018/ (last visited Aug 12, 2018). This striking statistic implies that each discrimination client you represent probably has at least one social media account.
Protecting your client’s privacy, while complying with all applicable rules to preserve and produce relevant discovery information, is crucial. Your discrimination client’s email and social media accounts may not necessarily contain relevant information for their case, but you must take all necessary steps to protect your client’s personal information, privacy, and any relevant evidence.
After being retained in a discrimination case, first find out the types of social media and email account(s) your client uses. Determine what accounts exist, how many there are, and how frequently they are used. Take time to thoroughly discuss this information with your client in order to prevent opposing counsel from gaining access to information from a social media account your client failed to disclose.
Gaining your client’s trust is essential because they need to be comfortable knowing that you will be examining their personal social media accounts. Explain how it is better for you, bound by attorney-client privilege, to see their posts, chats, messages, and tweets, rather than opposing council. You will have to obtain your client’s usernames and passwords to properly preserve information and protect your client.
You must also make sure that all of your client’s accounts are secure. This means confirming that only your client has access to their email and social media accounts and that all account settings are set to the highest possible level of privacy. In discrimination and harassment cases, defense lawyers often begin monitoring the plaintiff’s social media accounts as soon as they are retained on the case. Even though information contained on social media is by its nature public, if possible, aim to limit access to that information. Consider a scenario in which a plaintiff is a victim of horrific racial harassment. Unfortunately, they forget to tell their attorney about one of their Facebook accounts, which they use to promote their music. For over an hour during their deposition, defense counsel projects the pictures and videos from the client’s account on a screen and combs through them in front of everyone present. The plaintiff’s lawyer is unaware of the account and, as a result, is unprepared for this development. This may or may not affect the outcome of the case. If the client denied having the account, it could affect their credibility as a witness in the case. At a minimum, the incident is extremely upsetting to the client, made them feel intimidated, and was very difficult to endure. Whenever possible, strive to protect clients from an outcome like this.
Take all necessary steps to preserve all relevant accounts. It is very likely that opposing counsel will make broad requests for production of information contained on social media accounts. Be sure that your client is aware of the duty to preserve all account information. They cannot delete any email or social media accounts, especially if they contain relevant discovery information. You must determine if there is any relevant information within a particular account and if there is, preserve it by downloading that information right away. You can archive Facebook accounts so that you have all relevant information at your fingertips. This allows you to limit your production of social media to relevant information, rather than leaving it up to opposing counsel. If there are relevant emails (like emails from a harasser or emails proving your client reported the discrimination), make sure you download them and have them ready for use in a demand letter or when discovery is issued.
Remember to use your knowledge of social media and email to play offense. That information can be both a sword and a shield. Instead of just using it to protect your client, use that knowledge to your advantage in discovery. Securing the accounts is not just about protecting private communications and information, but also about gathering useful evidence. Imagine a sexual harassment case where a harasser sends a series of lewd, private Facebook messages. If retained on a case like this, immediately download your client’s Facebook account and create a PDF of the offensive messages in order to attach them as exhibits in a demand letter. Electronically stored information (“ESI”) like this can be extremely powerful evidence; make sure to take proper steps in order to use it.
Lastly, make regular use of requests for ESI in discovery. Supervisors who engage in sexual harassment may send lewd pictures and jokes using their work email accounts. That information is relevant in a hostile work environment sexual harassment case. Get comfortable demanding all emails containing certain keywords so you can find out what sort of damaging ESI exists. Opposing counsel has the same obligations to preserve this information as you do. Use that not only to shield your client’s privacy, but to help prove that your client has been harassed or discriminated against.
Young lawyers have the advantage of growing up with access to social media and email. Utilize this advantage by helping protect your discrimination client from overly invasive discovery requests and by obtaining relevant evidence from their employer.
About the Author:
Max Barack is a plaintiff-side civil rights employment lawyer. He has worked at Favaro & Gorman, Ltd. since January 2017. He represents victims of sexual, racial, national origin, age, and disability harassment, discrimination, retaliation, wage theft, and whistleblowers. Max has given presentations on the difficulties and best practices for handling social media and other forms of electronic discovery in litigation and Illinois employees’ workplace privacy rights. He has extensive experience with electronic discovery in the context of civil rights cases. He has performed in-depth research on and helped write an article on the rights of public employees. He is a member of the National Employment Lawyers Association (NELA) Illinois Chapter, the Illinois State Bar Association, the Chicago Bar Association, and the Decalogue Society. Max speaks Spanish and represents Spanish-speaking plaintiffs in a variety of employment-related cases.
Max grew up in the Chicago area. He graduated from Chicago-Kent College of Law in 2013, where he was a member of the Moot Court Honor Society and served on student government. Previously, he attended the University of Michigan and graduated with honors and a bachelor’s degree in history. He still lives in Chicago.
Click here to read Max’s full bio.