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Like everything else, employment litigation has gone social, turning “likes” and off-the-cuff comments into high-stake courtroom drama. Social networking platforms like Facebook and Twitter have increasingly become litigation resources, providing a wealth of statements and images used to contradict the claims or defenses of the opposing party. While employers and their counsel must be aware of what is discoverable, as well as the technology and methods used to obtain social media evidence, they must also be careful to understand and adhere to potentially conflicting legal obligations. That is, they must balance the duty to preserve evidence against the prohibitions limiting an employer’s ability to access or monitor an employee’s social media activity. As some have discovered, failure to adhere to these laws can have severe consequences.

The Duty to Preserve Evidence

Common to all litigation, including employment litigation, is the litigants’ duty to preserve potentially-relevant evidence. The duty serves the basic purpose of allowing litigants’ access to the evidence needed to prove their case, or in a more idealistic sense, access to justice. As such, the consequences of failing to preserve potentially-relevant social media information can result in punitive sanctions against a party and their counsel. Indeed, cases have effectively been won and lost because a party has failed to preserve documents — known as spoliation.

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