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Social Media Postings in Sexual Harassment Litigation

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Social Media Postings in Sexual Harassment Litigation

Source: Law.com
Date: January 20, 2015

Maria C. Walsh, Esq.

Resolution Centers


Sexual harassment litigation typically involves accusations of unwelcome sexual conduct or comments in the workplace. Sometimes allegations are simply denied. More often, however, defendants assert that plaintiff either welcomed or wasn’t offended by the alleged conduct or comments. Increasingly, an important evidentiary weapon in this battle comes from social networking postings, such as tweets, Facebook status posts, private messages, etc. At some point in the mutual mud-slinging, counsel find themselves debating the admissibility of the postings. Authenticity and Relevance As with all evidence, the question of admissibility starts with authenticity and relevance. The proponent of social media evidence has the burden to establish that the posting was generated by the person to whom it is attributed. Federal Rules of Evidence (“FRE”) 901. Courts have recognized many ways to establish authenticity. In a recent criminal sexual assault case, evidence that the defendant had engaged in conduct identical to the conduct described in his Facebook page “served as a basis for concluding that the records were authentic.” Commonwealth v. Foster F., 86 Mass. App. Ct. 734, 20 N.E. 3d 967, 971 (Mass. App. Ct. 2014). The relevance of proffered social media content is determined by the same analysis applicable to any other form of evidence. If the content relates directly to allegations of the complaint or to defenses, such as photos in the workplace or postings about the conduct alleged in the litigation, relevance is obvious. But when the content strays beyond the workplace, such as compromising photos of the plaintiff reveling outside the workplace, the “relevance” connection may be lost. Special FRE 412 Considerations Because of the sensitive, highly personal nature of allegations, defenses, and evidence in sexual harassment cases FRE 412, and state equivalents, direct courts to weigh the potential prejudice or embarrassment to the alleged victim against the probative value of the evidence. Consistent with the rationale in civil rape cases, most decisions distinguish between evidence of the alleged victim’s sexual behavior in the workplace (discoverable and admissible) and evidence of non-workplace conduct, generally irrelevant and inadmissible. “What a person views as acceptable or welcomed sexual activity or solicitation in his or her private life, may not be acceptable or welcomed from a fellow employee or supervisor.” Mackelprang v. Fidelity Nat. Title Agency of Nevada, 2007 WL 119149 (D.Nev.2007). Evidentiary Exceptions Early court rulings on social media evidence often excluded postings as inadmissible “hearsay.” More recent decisions accept authenticated social media photos or messages as exceptions to the hearsay rule (e.g., admissions against interest, contemporaneous state of mind evidence, etc.). Uniform Rules of Evidence Rule 803(b). When considering whether evidence of a defendant’s prior sexually harassing behavior can be offered to establish the defendant’s current disposition toward bad behavior, courts balance probity against prejudice. The more the prior bad act resembles the currently alleged conduct, and the closer in time, the more likely the evidence will be admitted. A supervisor’s text message to another subordinate attaching a pornographic photo, or a post demonstrating the employer’s knowledge of a supervisor’s prior sexual harassment will be hard to exclude. “Private” Information Why do so many litigants post incriminating photos, tweet compromising messages, and share intensely personal details of their life on social networking sites? Most assume only ‘friendly’ eyes will view their broadcasts and are dismayed to learn that social media pages and postings can be discovered despite “private” designations. Because a social media user’s restriction of access does not prevent viewers from copying and further broadcasting the posting, courts have concluded there can be “no reasonable expectation of privacy.” U.S. v. Meregildo, 2012 WL 3264501, at *2 (S.D.N.Y. 2012). Unlike medical records or communications 1.800.352.JAMS | www.jamsadr.com This article was originally published by LAW.COM and is reprinted with their permission. Social media poStingS in Sexual haraSSment litigation By Maria C. Walsh, Esq.Social Media Postings | Page 2 with legal counsel, social media postings exist to be shared. The days when litigants were ordered to share their login and passwords with opposing counsel for free range discovery of social media pages have passed, however, and courts generally permit discovery only of relevant posts. What Counsel Can Do Counsel should review their clients’ social media communications early in the life of any case. In the context of employment litigation, employer counsel must identify all personnel whose actions are alleged to create liability for the employer and review their social media postings, etc. Should your client propose “cleaning up” their online activity before discovery, explain the obligation to preserve potential evidence, and issue litigation hold notices. Sanctions have been imposed on litigants and counsel for spoliation resulting from alteration or deletion of social media postings. Also advise clients not to post new information that might compromise the litigation. Marshall McLuhan said, “The medium is the message.” Today the act of self-publication in electronic media not only creates the message, but determines its admissibility. When counsel disagree about whether social media content is discoverable, they may select a discovery master to conduct an in camera review of the potential evidence to separate relevant from irrelevant posts. Better yet, mediate the sexual harassment case, negotiate a settlement, and avoid the need to introduce social media postings into evidence. But please … no tweets from the caucus room about how well the negotiations are proceeding. Assume the other side is following. Maria C. Walsh is a full-time mediator and arbitrator with JAMS and has vast experience resolving employment discrimination claims. She can be reached at mwalsh@jamsadr.com.
exual harassment litigation typically involves accusations of
unwelcome sexual conduct or comments in the workplace.
Sometimes allegations are simply denied. More often,
however, defendants assert that plaintiff either welcomed
or wasn't offended by the alleged conduct or comments.
Increasingly, an important evidentiary weapon in this battle
comes from social networking postings, such as tweets,
Facebook status posts, private messages, etc. At some
point in the mutual mud-slinging, counsel find themselves
debating the admissibility of the postings.
Authenticity and Relevance
As with all evidence, the question of admissibility starts with
authenticity and relevance. The proponent of social media
evidence has the burden to establish that the posting was
generated by the person to whom it is attributed. Federal
Rules of Evidence ("FRE") 901. Courts have recognized
many ways to establish authenticity. In a recent criminal
sexual assault case, evidence that the defendant had
engaged in conduct identical to the conduct described in
his Facebook page "served as a basis for concluding that
the records were authentic." Commonwealth v. Foster F., 86
Mass. App. Ct. 734, 20 N.E. 3d 967, 971 (Mass. App. Ct.
2014).
The relevance of proffered social media content is determined
by the same analysis applicable to any other form of evidence.
If the content relates directly to allegations of the complaint
or to defenses, such as photos in the workplace or postings
about the conduct alleged in the litigation, relevance is
obvious. But when the content strays beyond the workplace,
such as compromising photos of the plaintiff reveling outside
the workplace, the "relevance" connection may be lost.
Special FRE 412 Considerations
Because of the sensitive, highly personal nature of
allegations, defenses, and evidence in sexual harassment
cases FRE 412, and state equivalents, direct courts to weigh
the potential prejudice or embarrassment to the alleged
victim against the probative value of the evidence. Consistent
with the rationale in civil rape cases, most decisions
distinguish between evidence of the alleged victim's sexual
behavior in the workplace (discoverable and admissible)
and evidence of non-workplace conduct, generally irrelevant
and inadmissible. "What a person views as acceptable or
welcomed sexual activity or solicitation in his or her private
life, may not be acceptable or welcomed from a fellow
employee or supervisor." Mackelprang v. Fidelity Nat. Title
Agency of Nevada, 2007 WL 119149 (D.Nev.2007).
Evidentiary Exceptions
Early court rulings on social media evidence often excluded
postings as inadmissible "hearsay." More recent decisions
accept authenticated social media photos or messages as
exceptions to the hearsay rule (e.g., admissions against
interest, contemporaneous state of mind evidence, etc.).
Uniform Rules of Evidence Rule 803(b). When considering
whether evidence of a defendant's prior sexually harassing
behavior can be offered to establish the defendant's current
disposition toward bad behavior, courts balance probity
against prejudice. The more the prior bad act resembles
the currently alleged conduct, and the closer in time, the
more likely the evidence will be admitted. A supervisor's text
message to another subordinate attaching a pornographic
photo, or a post demonstrating the employer's knowledge
of a supervisor's prior sexual harassment will be hard to
exclude.
"Private" Information
Why do so many litigants post incriminating photos, tweet
compromising messages, and share intensely personal
details of their life on social networking sites? Most assume
only ‘friendly' eyes will view their broadcasts and are dismayed
to learn that social media pages and postings can be
discovered despite "private" designations. Because a social
media user's restriction of access does not prevent viewers
from copying and further broadcasting the posting, courts
have concluded there can be "no reasonable expectation
of privacy." U.S. v. Meregildo, 2012 WL 3264501, at *2
(S.D.N.Y. 2012). Unlike medical records or communications
1.800.352.JAMS | www.jamsadr.com
This article was originally published by LAW.COM
and is reprinted with their permission.
Social media postings in sexual
harassment litigation
By Maria C. Walsh, Esq.
Social Media Postings | Page 2
with legal counsel, social media postings exist to be shared.
The days when litigants were ordered to share their login and
passwords with opposing counsel for free range discovery
of social media pages have passed, however, and courts
generally permit discovery only of relevant posts.
What Counsel Can Do
Counsel should review their clients' social media
communications early in the life of any case. In the context
of employment litigation, employer counsel must identify all
personnel whose actions are alleged to create liability for
the employer and review their social media postings, etc.
Should your client propose "cleaning up" their online activity
before discovery, explain the obligation to preserve potential
evidence, and issue litigation hold notices. Sanctions
have been imposed on litigants and counsel for spoliation
resulting from alteration or deletion of social media postings.
Also advise clients not to post new information that might
compromise the litigation.
Marshall McLuhan said, "The medium is the message."
Today the act of self-publication in electronic media not only
creates the message, but determines its admissibility. When
counsel disagree about whether social media content is
discoverable, they may select a discovery master to conduct
an in camera review of the potential evidence to separate
relevant from irrelevant posts. Better yet, mediate the sexual
harassment case, negotiate a settlement, and avoid the
need to introduce social media postings into evidence. But
please … no tweets from the caucus room about how well
the negotiations are proceeding. Assume the other side is
following.
Maria C. Walsh is a full-time mediator and arbitrator
with JAMS and has vast experience resolving employment
discrimination claims. She can be reached at
mwalsh@jamsadr.com.