Tag: Facebook

Facebook “Tagged” in Certified Facial Scanning Class Action

Recently, the Ninth Circuit Court of Appeals held that an Illinois class of Facebook users can pursue a class action lawsuit arising out of Facebook’s use of facial scanning technology. A three-judge panel in Nimesh Patel, et al v. Facebook, Inc., Case No. 18-15982 issued an unanimous ruling that the mere collection of an individual’s biometric data was a sufficient actual or threatened injury under the Illinois Biometric Information Privacy Act (“BIPA”) to establish standing to sue in federal court. The Court affirmed the district court’s decision certifying a class. This creates a significant financial risk to Facebook, because the BIPA provides for statutory damages of $1,000-$5,000 for each time Facebook’s use of facial scanning technology was used in the State of Illinois.

This case is important for several reasons. First, the decision recognizes that the mere collection of biometric information may be actionable, because it creates harm to an individual’s privacy. Second, the decision highlights the possible extraterritorial application of state data privacy laws, even those that have been passed by state legislatures intending to protect only their own residents. Third, the decision lays the groundwork for a potential circuit split on what constitutes a “sufficiently concrete injury” to convey standing under the U.S. Supreme Court’s landmark 2016 decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016). Fourth, due to the Illinois courts’ liberal construction and interpretation of the statute, class actions in this sphere are likely to continue to increase.

The Illinois class is challenging Facebook’s “Tag Suggestions” program, which scans for and identifies people in uploaded photographs for photo tagging. The class plaintiffs alleged that Facebook collected and stored biometric data without prior notice or consent, and without a data retention schedule that complies with BIPA. Passed in 2008, Illinois’ BIPA prohibits gathering the “scan of hand or face geometry” without users’ permission.

The district court previously denied Facebook’s numerous motions to dismiss the BIPA action on both procedural and substantive grounds and certified the class. In moving to decertify the class, Facebook argued that any BIPA violations were merely procedural and did not amount to “an injury of a concrete interest” as required by the U.S. Supreme Court’s landmark 2016 decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016).

In its ruling, the Ninth Circuit determined that Facebook’s use of facial recognition technology without users’ consent “invades an individual’s private affairs and concrete interests.” According to the Court, such privacy concerns were a sufficient injury-in-fact to establish standing, because “Facebook’s alleged collection, use, and storage of plaintiffs’ face templates here is the very substantive harm targeted by BIPA.” The Court cited with approval Rosenbach v. Six Flags Entertainment Corp., — N.E.3d —, 2019 IL 123186 (Ill. 2019), a recent Illinois Supreme Court decision similarly finding that individuals can sue under BIPA even if they suffered no damage beyond mere violation of the statute. The Ninth Circuit also suggested that “[s]imilar conduct is actionable at common law.”

On the issue of class certification, the Ninth Circuit’s decision creates a precedent for extraterritorial application of the BIPA. Facebook unsuccessfully argued that (1) the BIPA did not apply because Facebook’s collection of biometric data occurred on servers located outside of Illinois, and (2) even if BIPA could apply, individual trials must be conducted to determine whether users uploaded photos in Illinois. The Ninth Circuit rejected both arguments. The Court determined that (1) the BIPA applied if users uploaded photos or had their faces scanned in Illinois, and (2) jurisdiction could be decided on a class-wide basis. Given the cross-border nature of data use, the Court’s reasoning could be influential in future cases where a company challenges the applicability of data breach or data privacy laws that have been passed by state legislatures intending to protect their own residents.

The Ninth Circuit’s decision also lays the groundwork for a potential circuit split. In two cases from December 2018 and January 2019, a federal judge in the Northern District of Illinois reached a different conclusion than the Ninth Circuit on the issue of BIPA standing. In both cases, the Northern District of Illinois ruled that retaining an individual’s private information is not a sufficiently concrete injury to satisfy Article III standing under Spokeo. One of these cases, which concerned Google’s free Google Photos service that collects and stores face-geometry scans of uploaded photos, is currently on appeal to the Seventh Circuit.

The Ninth Circuit’s decision paves the way for a class action trial against Facebook. The case was previously only weeks away from trial when the Ninth Circuit accepted Facebook’s Rule 23(f) appeal, so the litigation is expected to return to the district court’s trial calendar soon. If Facebook is found to have violated the Illinois statute, it could be held liable for substantial damages – as much as $1000 for every “negligent” violation and $5000 for every “reckless or intentional” violation of BIPA.

BIPA class action litigation has become increasingly popular since the Illinois Legislature enacted it: over 300 putative class actions asserting BIPA violations have been filed since 2015. Illinois’ BIPA has also opened the door to other recent state legislation regulating the collection and use of biometric information. Two other states, Texas and Washington, already have specific biometric identifier privacy laws in place, although enforcement of those laws is accomplished by the state Attorney General, not private individuals. A similar California law is set to go into effect in 2020. Legislation similar to Illinois’ BIPA is also currently pending in several other states.

The Facebook case will continue to be closely watched, both in terms of the standing ruling as well as the potential extended reach of the Illinois law.

© Polsinelli PC, Polsinelli LLP in California

For more in biometric data privacy, see the National Law Review Communications, Media & Internet law page.

Will Technology Return Shame to Our Society?

The sex police are out there on the streets
Make sure the pass laws are not broken

Undercover (of the Night), The Rolling Stones

So, now we know that browsing porn in “incognito” mode doesn’t prevent those sites from leaking your dirty data courtesy of the friendly folks at Google and Facebook.  93 per cent of porn sites leak user data to a third party. Of these, Google tracks about 74 per cent of the analyzed porn sites, while Oracle tracks nearly 24 per cent sites and Facebook tracks nearly 10 per cent porn sites.  Yet, despite such stats, 30 per cent of all internet traffic still relates to porn sites.

The hacker who perpetrated the enormous Capital One data beach outed herself by oversharing on GitHub.  Had she been able to keep her trap shut, we’d probably still not know that she was in our wallets.  Did she want to get caught, or was she simply unashamed of having stolen a Queen’s ransom worth of financial data?

Many have lamented that shame (along with irony, truth and proper grammar) is dead.  I disagree.  I think that shame has been on the outward leg of a boomerang trajectory fueled by technology and is accelerating on the return trip to whack us noobs in the back of our unsuspecting heads.

Technology has allowed us to do all sorts of stuff privately that we used to have to muster the gumption to do in public.  Buying Penthouse the old-fashioned way meant you had to brave the drugstore cashier, who could turn out to be a cheerleader at your high school or your Mom’s PTA friend.  Buying the Biggie Bag at Wendy’s meant enduring the disapproving stares of vegans buying salads and diet iced tea.  Let’s not even talk about ED medication or baldness cures.

All your petty vices and vanity purchases can now be indulged in the sanctity of your bedroom.  Or so you thought.  There is no free lunch, naked or otherwise, we are coming to find.  How will society respond?

Country music advises us to dance like no one is watching and to love like we’ll never get hurt. When we are alone, we can act closer to our baser instincts.  This is why privacy is protective of creativity and subversive behaviors, and why in societies without privacy, people’s behavior regresses toward the most socially acceptable responses.  As my partner Ted Claypoole wrote in Privacy in the Age of Big Data,

“We all behave differently when we know we are being watched and listened to, and the resulting change in behavior is simply a loss of freedom – the freedom to behave in a private and comfortable fashion; the freedom to allow the less socially -careful branches of our personalities to flower. Loss of privacy reduces the spectrum of choices we can make about the most important aspects of our lives.

By providing a broader range of choices, and by freeing our choices from immediate review and censure from society, privacy enables us to be creative and to make decisions about ourselves that are outside the mainstream. Privacy grants us the room to be as creative and thought-provoking as we want to be. British scholar and law dean Timothy Macklem succinctly argues that the “isolating shield of privacy enables people to develop and exchange ideas, or to foster and share activities, that the presence or even awareness of other people might stifle. For better and for worse, then, privacy is a sponsor and guardian to the creative and the subversive.”

For the past two decades we have let down our guard, exercising our most subversive and embarrassing expressions of id in what we thought was a private space. Now we see that such privacy was likely an illusion, and we feel as if we’ve been somehow gas lighted into showing our noteworthy bad behavior in the disapproving public square.

Exposure of the Ashley Madison affair-seeking population should have taught us this lesson, but it seems that each generation needs to learn in its own way.

The nerds will, inevitably, figure out how to continue to work and play largely unobserved.  But what of the rest of us?  Will the pincer attack of the advancing surveillance state and the denizens of the Dark Web bring shame back as a countervailing force to govern our behavior?  Will the next decade be marked as the New Puritanism?

Dwight Lyman Moody, a predominant 19th century evangelist, author, and publisher, famously said, “Character is what you are in the dark.”  Through the night vision goggles of technology, more and more of your neighbors can see who you really are and there are very few of us who can bear that kind of scrutiny.  Maybe Mick Jagger had it right all the way back in 1983, when he advised “Curl up baby/Keep it all out of sight.”  Undercover of the night indeed.

Copyright © 2019 Womble Bond Dickinson (US) LLP All Rights Reserved.

Busted [Bracket]: Facebook Posts From Employee’s Vacation Undermine FMLA Claims

Ah, the tell-tale signs of March are here.  The winter is starting to dissipate in the northern climes, we’ve set the clocks forward, and Syracuse is bound for another Final Four run.  Unfortunately, most teams won’t be so lucky and many coaches will soon find themselves on a beach.  And why not?  After a long, hard-fought season that fell just a bit short, might as well take a warm-weather vacation – go for a quick swim, maybe hit the amusement park, and take a few pictures of all the fun in the sun and post them to Facebook.  Sounds like a marvelous idea for many NCAA coaches, but not so much for employees out on FMLA leave.  The plaintiff in Jones v. Gulf Coast Health Care of Delaware, a recent case out of a Florida federal court, learned this the hard way.

Background

Rodney Jones, an employee of Accentia Health, took 12 weeks of FMLA leave for shoulder surgery, but was unable to provide a “fitness for duty” certification because, his doctor said, he needed additional therapy on his shoulder.  Accentia permitted him to take an additional month of non-FMLA leave.  Towards the end of his FMLA leave and during his non-FMLA leave, Jones took trips to Busch Gardens in Florida and to St. Martin.  Jones posted several pictures of his excursions to Facebook – including, for example, pictures of him swimming in the ocean (this, of course, during the time in which he was supposed to be recovering from shoulder surgery).

Accentia discovered the photos Jones posted to Facebook and provided him with an opportunity to explain the pictures.  When he could not do so, Accentia terminated his employment.  Jones then sued Accentia, claiming it interfered with his exercise of FMLA rights and retaliated against him for taking leave under the FMLA.

Termination Not Illegal

The court sided with Accentia.  First, Jones’ interference claim failed because Accentia provided him with the required 12 week leave and did not unlawfully interfere with his right to return to work thereafter.  Accentia had a uniform policy and practice of requiring each employee to provide a “fitness for duty” certification before returning from FMLA leave.  When Jones failed to provide such certification at the end of his FMLA leave, he forfeited his right to return under the FMLA.

Second, Jones’ retaliation claim failed because he failed to show Accentia terminated his employment because he requested or took FMLA leave.  Rather, Accentia terminated his employment for his well-documented conduct during his FMLA leave and non-FMLA leave.

Takeaways

This case provides several important lessons for employers.

  1. It is important to provide employees with an opportunity to explain conduct that appears to be an abuse of their FMLA leave entitlement. Employers who defend FMLA retaliation cases based on their “honest belief” that employees were misusing FMLA are much more likely to succeed if they conduct a thorough investigation into the employee’s conduct and give the employee an opportunity to explain the conduct.

  2. Ensure that any “fitness for duty” certification requirement applies uniformly to all similarly-situated employees (e., same job, same serious health condition) who take FMLA leave. The court in this case found that Jones’ interference claim failed, in part, because Accentia’s “fitness for duty” certification requirement applied to all employees similarly-situated to Jones.  Had it enforced this policy on an ad hoc basis, the outcome may have been different.

Article By Daniel R. Long of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
©1994-2016 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

Facebook: Second Circuit "Likes" Employee Rights Under the NLRA

Employers should continue to proceed with caution before disciplining employees for their Facebook activity. In Three D, LLC d/b/a Triple Play Sports Bar and Grille v. NLRB, the Federal Appeals Court for Connecticut, New York and Vermont recently upheld a National Labor Relations Board decision that found that one employee’s “liking” another employee’s comments about the terms and conditions of their employment deserved protection under the National Labor Relations Act. The Court upheld the Board’s decision that terminating those employees was illegal.

In Three D, LLC, the employees of a sports bar had a discussion on Facebook about their employer’s alleged mishandling of their tax withholding. The exchange included both negative comments about their workplace and profanity. One of the employees joined into the conversation by writing a response, while another simply “liked” a co-worker’s statements. The employees happened to be Facebook friends with the bar’s owner’s sister, who told the owner about the post. The owner fired the employees, some of whom were interrogated about the posting and threatened with legal action before their termination. The Board found that this was illegal, and the Employer appealed to the Second Circuit.

In recent years the NLRB has been very open about focusing its efforts on the non-unionized workforce. Many employers assume that because they do not have a union, they do not have to worry about the National Labor Relations Act. However, the Act protects the rights of all employees-unionized or not-to engage in concerted activities for their mutual aid or protection. This includes talking together about their working conditions, wages, and even criticizing management. Interfering with that right may be considered an unfair labor practice.

Before the decision in Three D, LLC, the Board had held that the Act protected Facebook posts/conversations about working conditions. The Board did not make clear whether or not simply “liking” a post constituted enough employee participation to count as protected activity. Three D, LLC made clear that at least in Connecticut, Vermont and New York, such activity merits NLRA protection.

An Employer naturally wants to act when its employees post negative or obscene comments about their workplace or their supervisor on Facebook. It is a public forum that the Employer cannot control, and interesting messages can go viral. Three D, LLC does not change the law that Employers have an interest in preventing negative comments about their products or services and protecting their business reputation. An employee’s public communications may lose protection of the Act if sufficiently disloyal or defamatory. This can happen if the statements are not connected with an ongoing labor dispute or are made maliciously and with knowledge of their falsity. However Employers must tread carefully before disciplining employees for their social media use to air workplace grievances.

All in all, Employers should continue to take a close look at their actions in response to employee Facebook posts, even if they do not “like” it.

Article By Michael Colgan Harrington & Jennifer A. Corvo of Murtha Cullina

© Copyright 2015 Murtha Cullina

Facebook: Second Circuit “Likes” Employee Rights Under the NLRA

Employers should continue to proceed with caution before disciplining employees for their Facebook activity. In Three D, LLC d/b/a Triple Play Sports Bar and Grille v. NLRB, the Federal Appeals Court for Connecticut, New York and Vermont recently upheld a National Labor Relations Board decision that found that one employee’s “liking” another employee’s comments about the terms and conditions of their employment deserved protection under the National Labor Relations Act. The Court upheld the Board’s decision that terminating those employees was illegal.

In Three D, LLC, the employees of a sports bar had a discussion on Facebook about their employer’s alleged mishandling of their tax withholding. The exchange included both negative comments about their workplace and profanity. One of the employees joined into the conversation by writing a response, while another simply “liked” a co-worker’s statements. The employees happened to be Facebook friends with the bar’s owner’s sister, who told the owner about the post. The owner fired the employees, some of whom were interrogated about the posting and threatened with legal action before their termination. The Board found that this was illegal, and the Employer appealed to the Second Circuit.

In recent years the NLRB has been very open about focusing its efforts on the non-unionized workforce. Many employers assume that because they do not have a union, they do not have to worry about the National Labor Relations Act. However, the Act protects the rights of all employees-unionized or not-to engage in concerted activities for their mutual aid or protection. This includes talking together about their working conditions, wages, and even criticizing management. Interfering with that right may be considered an unfair labor practice.

Before the decision in Three D, LLC, the Board had held that the Act protected Facebook posts/conversations about working conditions. The Board did not make clear whether or not simply “liking” a post constituted enough employee participation to count as protected activity. Three D, LLC made clear that at least in Connecticut, Vermont and New York, such activity merits NLRA protection.

An Employer naturally wants to act when its employees post negative or obscene comments about their workplace or their supervisor on Facebook. It is a public forum that the Employer cannot control, and interesting messages can go viral. Three D, LLC does not change the law that Employers have an interest in preventing negative comments about their products or services and protecting their business reputation. An employee’s public communications may lose protection of the Act if sufficiently disloyal or defamatory. This can happen if the statements are not connected with an ongoing labor dispute or are made maliciously and with knowledge of their falsity. However Employers must tread carefully before disciplining employees for their social media use to air workplace grievances.

All in all, Employers should continue to take a close look at their actions in response to employee Facebook posts, even if they do not “like” it.

Article By Michael Colgan Harrington & Jennifer A. Corvo of Murtha Cullina

© Copyright 2015 Murtha Cullina

Employee Fired for Facebook Selfie

facebook tab labelA Georgia employee was recently terminated from his position at a marketing firm as a result of a disgraceful Facebook “selfie.” In this case, the employee took a “selfie” with a co-worker’s African American son and uploaded the image as his profile picture. The employee’s picture resulted in a number of Facebook “friends” making derogatory, racist, and disgraceful remarks about the child (we won’t be posting them here). In response to some of the remarks, the employee described the child as “feral.” Not surprisingly, the company promptly terminated the employee’s employment.

Why is this story worth mentioning?  Because this Facebook post represents yet another clear example of social media activity that falls outside the scope of the National Labor Relations Act (NLRA).

As many employers are aware, the NLRA provides some protection to employees engaging in social media activity when the content amounts to “protected concerted activity.” This occurs when two or more employees take action for their mutual aid or protection regarding the terms and conditions of employment (e.g., wages, hours, safety, etc.).

Analyzing whether a post amounts to “protected concerted activity” can be a difficult process. As a result, we believe it is best to work through the analysis with examples. On one end of the spectrum you may have a Facebook post between employees engaging in a civil discussion regarding workplace safety. This discussion would arguably constitute protected concerted activity. On the other end of the spectrum you may encounter a post like the example discussed above – arguably not protected concerted activity. Along the spectrum you may encounter various other examples:

  1. “We don’t get paid enough to work overtime for that d@mn jerk!”

  2. “Good thing OSHA isn’t around because my dumb boss doesn’t care about safety.”

  3. “Our best customer, Mr. Smith, is a jerk.”

  4. “The boss is too old to run the company.”

  5. “I am going to beat up my supervisor and key his car.”

Examples 1 and 2 arguably constitute “protected concerted activity.” Examples 3-5 arguably do not. Remember: the farther the post strays from the “terms and conditions of employment,” the more likely discipline will be permissible. Of course the analysis is much more complex than this. Many other factors could come into play. As such, it is always prudent to involve outside counsel when evaluating whether an employee should be disciplined for a social media post.

Article By Peter T. Tschanz of Barnes & Thornburg LLP

© 2015 BARNES & THORNBURG LLP

Biometrics: Facebook Files Motion to Dismiss Privacy Suit over Facial Recognition Technology

As discussed in a previous post on facial recognition technology, a putative class action has been filed against Facebook over the collection of “faceprints” for its online photo tagging function, Tag Suggestions.  (See e.g., Licata v. Facebook, Inc., No. 2015CH05427 (Ill. Cir. Ct. Cook Cty. filed Apr. 1, 2015) (the case has been transferred to a San Francisco district court, Licata v. Facebook, Inc., No. 15-03748 (N.D. Cal. Consolidated Class Action Complaint filed Aug. 28, 2015)).

The plaintiffs claim that Facebook’s use of facial recognition technology to scan user-uploaded photos for its Tag Suggestions feature violates Illinois’s Biometric Information Privacy Act (BIPA), 740 ILCS 14/1, and has been used to create, what the plaintiffs allege, is “the world’s largest privately held database of consumer biometrics data.”

Plaintiffs allege that Facebook extracts face geometry data (or faceprints) from user-uploaded photographs and retains such “biometric identifiers” within the meaning of the BIPA. The complaint alleges, among other things, that Facebook collected and stored biometric data without adequate consent.  The complaint seeks an injunction and statutory damages for each violation (note: BIPA provides for $1,000 in statutory damages for each negligent violation, and $5,000 for intentional violations, plus attorney’s fees).

Last week, Facebook filed its motion to dismiss, arguing, among other things, that based on the choice of law provision in its terms of service, California, not Illinois, law should apply (thereby precluding users from bringing a claim under BIPA), and that, regardless, Section 10 of BIPA expressly “excludes both ‘photographs’ and ‘information derived from photographs’ from its reach.”

Those wanting a preview of the plaintiffs’ response to Facebook’s motion should look to a similar privacy action against Shutterfly currently being litigated in Illinois federal court.  (See Norberg v. Shutterfly, Inc., No. 15-05351 (N.D. Ill. filed June 17, 2015)).  There, the plaintiff brought claims under BIPA against the photo storage service Shutterfly for allegedly collecting faceprints from user-upload photos for a tag suggestion feature without express written consent and “without consideration for whether a particular face belongs to a Shutterfly user or unwitting nonuser.”  In its motion to dismiss, Shutterfly, like Facebook, argued that scans of face geometry derived from uploaded photographs are not “biometric identifiers” under BIPA because the statute excludes information derived from photographs.

In his rebuttal, the plaintiff Norberg claimed if the intermediation of a photograph before processing face geometry excluded such data from the definition of a biometric identifier, then the statute would be meaningless:

“Defendants’ interpretation of the BIPA as inapplicable to face scans of photographs is contrary to the very nature of biometric technology and thus would undermine the statute’s core purpose. A photograph of a face is exactly what is scanned to map out the unique geometric patterns that establish an individual’s identity. Taken to its logical conclusion, Defendants’ argument would exclude all the biometric identifiers from the definition of biometric identifiers, because they are all based on the initial capture of a photograph or recording.”

We will be watching both disputes closely – if the suits are not dismissed on procedural or contractual grounds, this will be the first time a court will have the opportunity to interpret the contours of the Illinois biometric privacy statute with respect to facial recognition technology.

Article By Jeffrey D Neuburger of Proskauer Rose LLP

© 2015 Proskauer Rose LLP.

8 Proven Ways to Boost Engagement for Your Facebook Posts

If you’re using Facebook to “sell” your law firm, you are probably disappointed in your results.  You see, Facebook is about engagement and anything that smacks of a hard-sell is usually tuned out.

You will get much better results if you simply surrender to what Facebook can deliver, which is an opportunity to meet new prospects and to share your knowledge that may someday lead to new business.

A lot of new business connections occur on Facebook based on people you used to know –old high school or college friends that you connect with there and then educate them naturally on what you do now.  In that sense, approaching Facebook as a referral source cultivation opportunity could be a mindset that will pay you big dividends in the future.

That said, there are certain things you can do that research shows leads to more engagement with your Facebook posts.

According to Shareaholic research, social media now drives more traffic (31.2%) to the websites of people and organizations that post on social media sites than any other channel, including search. Facebook dwarfs all other social networks for driving that traffic, accounting for 25% of all website traffic coming from social media!

BuzzSumo recently analyzed 500 million Facebook posts to discover what types of posts create the most engagement. Use this data to plot your posting strategy and you will likely see an uptick in the number of likes, comments and shares your posts get on Facebook:

  1. Schedule evening posts. Posts published between 10 p.m. and 11 p.m. ET get 88% more interactions than the average Facebook post.

  2. Use images. Image posts get 179% more interactions than the average Facebook post.

  3. Pose a question. Posts ending with a question get 162% more interactions than the average post.

  4. Use video. Videos are the most shared post type on Facebook, averaging 89.5 shares per video.

  5. Post on Sundays. Posts published on a Sunday get 52.9% more interactions than the average post.

  6. Keep posts brief. Posts with 150-200 characters performed the best, averaging 238.75 shares.

  7. Post directly to Facebook. Posting with a third party tool results in 89.5% less engagement than posting directly to Facebook.

  8. Link to longer content. Posts that link to long form content (2,000+ words) receive 40% more interactions than linking to shorter content.

Just like any social media network, the lion’s share of the attention goes to those who interact frequently – and genuinely – with followers and fans. Knowing how valuable and limited your time may be for social media marketing, you need to make efficient use of it to get the maximum benefit.  These tips can help you do just that.

Article By Stephen Fairley of The Rainmaker Institute

© The Rainmaker Institute, All Rights Reserved

Gone, But Not Forgotten – A Deactivated Facebook Account Can Be Discoverable

Courts have long grappled with social media in a legal context. The struggle to understand social media issues — and to craft coherent applicable legal policy — renders Crowe v. Marquette Transportation Co. Gulf-Inland, LLC amusing to show how the less-than-honest actions of an employee-plaintiff can make these difficult legal questions fairly simple for a court.

In May of 2014, Brannon Crowe sued Marquette Transportation, his employer, for an injury to his knee that he claimed to have suffered in an accident at work. Interestingly, however, Crowe allegedly sent a co-worker a message on Facebook which stated that he received the injury during a fishing trip, and not at work. When confronted with the message to the co-worker by opposing counsel during a deposition, Crowe stated the account the message was sent from was Brannon “CroWe,” and it couldn’t be his because he didn’t have a capital “W” in his last name.

Facebook e-discovery in employment litigationAt the deposition, Crowe also said that he no longer had an account after the previous October, and his response to a discovery request for the contents of his account was that, in addition to such a request being vague, overbroad and unduly burdensome, he didn’t presently have a Facebook account. The court ordered Crowe to provide the contents of his account for the court to review in camera to determine if the contents of the account should indeed be discoverable. Later, however, Crowe’s counsel submitted to the court 4,000 pages of Facebook account information from the Brannon CroWe account, with an interesting wrinkle – the records of the account indicate that the account was deactivated – not deleted – four days after the discovery request for the account’s contents.

The court was understandably unamused, and suggested that the in camera review of 4,000 pages of Facebook account information would be a waste of time since this account information should have been produced earlier in response to Marquette’s request. The contradiction with Crowe’s testimony alone was enough to render the account information discoverable. Rather than review the documents fully in camera, the court ordered Crowe to turn over every single page of the Facebook account history to Marquette, as well as any login information for any Facebook accounts Crowe had at that time or in the past, and Crowe was ordered to consent to any authorization for Marquette to subpoena his Facebook information.

In effect, Crowe made the contents of the account discoverable through his attempts to keep it from being discovered, and that made the court’s decision on the issue clear. Luckily for Crowe, he only deactivated the account rather than deleted it, since he had a duty to preserve evidence in litigation. Spoliation of evidence is the negligent or intentional destruction or alteration of evidence that may be required in a lawsuit. Even though the evidence doesn’t look good for Crowe in the present case, had he deleted the account entirely, he would have been subject to the spoliation inference, which is a negative evidentiary inference in favor of the opposing party. A showing that a party has destroyed relevant evidence can lead to punitive sanctions against him as well.

Social media provides an abundant resource of data about a litigant, and both employers and employees alike should be a wary of even private messages sent to others in that context. When employees raise issues against employers in a legal setting, their interactions with coworkers on social media may be discoverable. This case also raises questions about how far those involved in legal proceedings can or should go to protect themselves with regard to their social media accounts. As courts become increasingly comfortable with the legal implications of social media and technology, issues such as evidence spoliation through deactivation and deletion will become more and more prominent as a trap for the unwary.

ARTICLE BY Brittany Blackburn Koch of McBrayer, McGinnis, Leslie and Kirkland, PLLC

© 2015 by McBrayer, McGinnis, Leslie & Kirkland, PLLC. All rights reserved.

Oklahoma Federal Court Denies Summary Judgment to Employer on Professor’s Allegations He Was Denied Tenure After Reporting Inappropriate Facebook Posts by Fellow Professors

Allen Matkins Leck Gamble Mallory & Natsis LLP

A federal court in Oklahoma recently denied summary judgment to Northeastern State University, finding that a professor’s discrimination and retaliation claims, among others, could proceed to trial. The professor, Dr. Leslie Hannah, was appointed chair of his department in 2009. The previous assistant chair, Dr. Brian Cowlishaw, was ineligible for the chair position pursuant to the University’s nepotism policy (his wife, Dr. Bridget Cowlishaw, was a professor in the department). During that period, Dr. Brian Cowlishaw posted the following comment on his Facebook page:

“Brian Hammer Cowlishaw /salutes in NSU’s direction / Good luck with that, then! [translation: I won’t be entering the ‘election’ for department chair, because what I offer, no one wants] Good luck! / salute!”

Then in response to a comment, he wrote:

“There will be an ‘election’ the first week of February. They’re making a f*****g indian chair.”

In 2010, Drs. Brian and Bridget Cowlishaw, and another professor, Dr. Donna Shelton, made disparaging comments on Facebook after Dr. Hannah scheduled a department meeting to be held outdoors by the river. In response to a post by Dr. Bridget Cowlishaw about not looking forward to the beginning of the academic year, Dr. Shelton wrote:

“Wonder if they sell body armor for use under regalia…”

In response to a post by Dr. Brian Cowlishaw about the camping trip, Dr. Bridget Cowlishaw wrote:

“Nah, our chair will bring all the handbaskets we need. He’s probably woven them himself.”

In response to a post about whether anyone attended, Dr. Bridget Cowlishaw wrote:

“Maybe they were all eaten by wolves.”

Dr. Hannah reported the posts to the University. The University found that the posts were inappropriate, and reprimanded the professors. Dr. Bridget Cowlishaw entered into a settlement agreement with the University whereby she resigned.

In 2011, Dr. Hannah reported to Human Resources: “I think the time has come for me to leave NSU. This seems to be an unsafe place for American Indians. I will be submitting my resignation . . . ” He then did not resign his position, but he did resign as department chair.

Dr. Hannah ultimately submitted his application for tenure and early promotion when he became eligible in late 2012. The committee that reviewed his application consisted of seven people, including Dr. Brian Cowlishaw and Dr. Shelton. The vote regarding Dr. Hannah was split 3/3 with one abstention, with Dr. Brian Cowlishaw and Dr. Shelton voting to deny the application. Thereafter, in early 2013, the University’s Dean reviewed the committee’s findings and denied Dr. Hannah’s application, stating that Dr. Hannah had “polarized the Department and displayed hostility toward other faculty and staff.” The Dean later stated that, while he was aware of past conflicts in the department, he was unaware of the inappropriate Facebook posts. Dr. Hannah filed a complaint with the University, and the University placed Dr. Hannah on administrative leave with pay for the remainder of his contract.

Dr. Hannah filed suit, including for discrimination and retaliation. The University brought a summary judgment motion. With respect to the discrimination and retaliation claims, the University’s main argument was that there was no causal connection between the Facebook posts in 2009 and 2010 and the denial of Dr. Hannah’s tenure in 2013.

The court was unconvinced that the passage of time between the Facebook posts and the denial of tenure defeated causation, stating: “Two years is not a significant amount of time. It is more than plausible and rather likely that after two years, Dr. Cowlishaw and Dr. Shelton still held some animosity toward Dr. Hannah for his reporting their Facebook posts, which resulted in their reprimands and possibly in the resignation of Dr. Cowlishaw’s wife.”

The Hannah case is another reminder for employers regarding the importance of implementing a good social media policy and training all employees to abide by it. Training employees not to make inappropriate posts in the first place trumps effective corrective action once the employer becomes aware of such posts. Although inHannah, the University’s initial response to the inappropriate posts was sufficient, the fact that the professors had made the posts in the first place played a key role in precluding the University from prevailing on summary judgment during later litigation.

ARTICLE BY

Alexander Nestor
Nisha Verma
Allen Matkins Leck Gamble Mallory & Natsis LLP