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VOL. 127 | NO. 229 | Thursday, November 22, 2012

Law Industry Closely Studying Social Media

By Andy Meek

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Corporate America has been warming to social media. Businesses as stodgy as banks have taken to platforms like Facebook and Twitter, including local institutions from Magna Bank to First Tennessee Bank and several others.

On the other end of the scale are companies like FedEx. The Memphis-based package delivery giant recently unveiled a partnership with Facebook with the launch of “Ship to Friends.” It’s a Facebook app that lets FedEx’s Facebook users send FedEx packages to their friends without leaving the Facebook ecosystem. Correspondingly, the legal industry is continuing to warm up to social media too.

Greg Grisham, a partner in the Memphis office of workplace law firm Jackson Lewis LLP, said directly what many people probably know but may not pay attention to:

“Lawyers do like to get information from social media for their cases,” he said. “It happens a lot in workers’ comp cases. Really, it happens in all cases. If the information’s in the public domain, then you’re not (inappropriately) crossing any boundaries in finding the information and using it.”

One issue driving much activity at present in the legal field has to do with that dividing line between public and private information. It’s something any serious Facebook user will be intimately familiar with, given the social network’s tweaks over the years that sometimes has resulted in information and settings being publicly displayed without users realizing it.

Grisham cited a recent Sixth Circuit Court of Appeals case centered on an employee firing that was based in large part on the employer’s use of a particular worker’s publicly accessible Facebook data.

Facebook users set up profile pages that include detailed personal information in addition to continually – however often they choose – populating a news feed of status updates. Various pieces of all that data or even the entirety of it can be made fully accessible to the public, or only viewable to friends whom the user has approved.

That distinction is important. In the recent court of appeals case, Grisham said an employee had “friended” some of her supervisors and coworkers on Facebook.

“She took some pictures of herself out having fun when she had said she was too sick to come into work, and they were accessible by her supervisors and coworkers,” Grisham said. “They didn’t have to do anything underhanded to look at the pictures. They were just there. A couple of the plaintiff’s coworkers saw them, and that’s how they came to the attention of the plaintiff’s supervisor.

“Then she shared the pictures with her supervisor, and that’s what started an investigation.”

The company ended up firing the worker over a policy prohibiting dishonesty. That’s a bit more clear-cut than some cases Grisham said he’s heard about, where law firms might have a paralegal or someone else create a profile on a social networking site to try and be “friends” with someone to gain access to information that a user has made private.

“Generally speaking, information in the public domain can be used,” Grisham said. “But once you cross into that line in trying to be essentially deceptive to gain access to what was private information – I think a lot of courts would have a problem with that.”

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