The first thing one defense lawyer does when he is hired for an employment case is check the employee’s Facebook account.  See blog post.  Eric Meyer, a defense lawyer, looks for references to the work place or the employer.  He prints out any pictures.  He looks for any information that refutes or refers to any allegation in the lawsuit or complaint.  According to one case, EEOC v. Simply Storage Management, it does not matter whether the employee has opted for privacy or not.  An employer would still have the right to request such information as part of the discovery process.

Mr. Meyer does not mention that Simply Storage concerned two female plaintiffs who claimed post-traumatic stress disorder.  See my prior post on that case.  So, Simply Storage should not apply to the vast majority of cases in which the plaintiff seeks nothing more than “garden variety emotional distress.”  But, the case does suggest that FB entries will be discoverable in some cases.

Mr. Meyer says he will issue a subpoena if necessary.  He will send a spoliation letter – meaning a letter which warns the employee from deleting anything on FB until the defense can obtain copies. The defense lawyer even says he will review the friends’ list to see who might have access to your FB website.  He appears to suggest he would consider asking current employees to access your FB wall and report what they find.

There was a time when the employer had in its possession all the relevant evidence.  Now, the employee may have some critical evidence, as well.  That does place some responsibility upon the plaintiff employee to safeguard potential evidence.