Tag Archives: LinkedIn

Mid-Year Report: Legal Cases Involving Social Media Rapidly Increasing

As part of our ongoing effort to monitor legal developments concerning social media evidence, we again searched online legal databases of state and federal court decisions across the United States — this time to identify the number of cases in the first half of 2012 where evidence from social networking sites played a significant role. The results are available here in a detailed spreadsheet listing each case, allowing for anyone to review the cases and conduct their own analysis. The cases are accessible for free on Google Scholar.  The overall tally come in at 319 cases for this 6 month period, which is about an 85 percent increase in the number of published social media cases over the same period in 2011, as reported by our prior survey earlier this year.

As with the last survey, we reviewed all the search results and added annotations for the more notable cases, and were sure to eliminate duplicates and to not count de minimis entries — defined as cases with merely cursory or passing mentions of social media sites.  As only a very small number of cases–approximately one percent of all filed cases– involve a published decision that we can access online, it is safe to assume that several thousand, if not tens of thousands more cases involved social media evidence during this time period. Additionally, many of these published decisions involve fact patterns from as far back as 2008, as they are now just working their way through the appeals process. Finally, these cases do not reflect the presumably many thousands of more instances where social media evidence was relevant to an internal investigation or compliance audit, yet did not evolve into actual litigation. Even so, this limited survey is an important data point establishing the ubiquitous nature of social media evidence, its escalating importance and the necessity of best practices technology to search and collect this data for litigation and compliance requirements.

The search, limited to the top four social networking sites, tallied as follows: Facebook is now far in the lead with 197 cases, MySpace tallied in at 89, mostly with fact patterns circa 2009, Twitter with 25 and LinkedIn with 8. Criminal matters marked the most common category of cases involving social media evidence, followed by employment related litigation, insurance claims/personal injury, family law and general business litigation (trademark infringement/libel/unfair competition). One interesting and increasingly common theme involved social media usage being considered as a factor in establishing minimum contacts for jurisdictional purposes. (See Juniper Networks, Inc. v. JUNIPER MEDIA, LLC, and Lyons v. RIENZI & SONS, INC, as examples)

We plan on providing a complete summary for all of the 2012 cases in early January and it safe to assume that the second half of 2012 will continue to see a sharp increase in the presence of social media evidence.

> View all 2012 cases and more now

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Surging Wage and Hour Class Action Suits and the Importance of Social Media Evidence

Wage and hour class action suits are rising dramatically. According to the USA Today, Plaintiffs filed 7,006 federal court wage-and-hour suits in 2011, many of them class actions, nearly quadruple the 2000 total. Many of these suits involve claims of misclassifying employees as exempt from overtime, especially salespersons and temporary professional employees. Additionally, these claims involve allegations of non-exempt employees being required to work off hours through the use of mobile devices, webmail and social media.  As such, social media evidence is playing an important role in the litigation of wage and hour claims on multiple levels.

As one recent example, a federal court in the Northern District of California earlier this month imposed monetary sanctions of nearly $16,000 and disqualified the lead plaintiff as the class representative in a wage and hour class action for failing to disclose relevant Facebook evidence. In Calvert v. Red Robin International, the lead plaintiff proved to be very active on Facebook, using the site to communicate with other claimants and to recruit potential plaintiffs into the class. The plaintiff and his lawyers failed to disclose this evidence, which the defendant’s law firm ultimately obtained through their own diligent investigation efforts. Such disqualifications and monetary sanctions against the lead plaintiff can prove to be important tactical victories in cases such as these.

Calvert is just one of many recent wage and hour cases that we have seen where social media has played a critical role. For instance, our customers have recently reported successfully using X1 Social Discovery in wage and hour claims, including, for example, to collect Linkedin and Facebook evidence that contradicted Plaintiffs claims that they were non-exempt employees. In addition to this customer use example and the case of Calvert v. Red Robin International, there are numerous other scenarios where the search and collection of social media evidence can be essential to the litigation of wage and hour cases, highlighting the importance of best practices technology to diligently represent your clients’ interests.

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689 Published Cases Involving Social Media Evidence (With Full Case Listing)

The torrent of social media evidence continues to grow. In November 2011 we searched online legal databases of state and federal court decisions across the United States to identify the number of cases from 2010 and through November 2011 where evidence from social networking sites played a significant role. As we mentioned then, the numbers exceeded even our high expectations. Recently, we revisited the survey with a little more detail to include results for all of 2011 to be sure we eliminated duplicate entries as well as de minimis entries — defined as cases with merely cursory or passing mentions of social media.

Under these criteria, the more exact number came up to 689 cases. Our raw data and tallying methodology is now public, with the spreadsheet available here, allowing for anyone to review the cases and provide your own analysis. The vast majority of the cases are accessible for free on Google Scholar.  About 5 percent of the listed cases are only available by subscription to Westlaw or LexisNexis.

The search, limited to the top four social networking sites, tallied as follows: MySpace (315 cases), Facebook (304), LinkedIn (39) Twitter (30). Oh, and my colleague Tod Cole insisted that I mention the lone Foursquare case. From the detailed review, a significant percentage, if not the majority of the MySpace cases involved criminal matters. Facebook mentions were trending up with MySpace  trending down as cases with more recent facts worked their way through the system.

Criminal matters marked the most common category of cases involving social media evidence, followed by employment related litigation, insurance claims/personal injury, family law and general business litigation (trademark infringement/libel/ unfair competition). As only a very small number of cases involve a published decision that we can access online, it is safe to assume that several thousand, if not tens of thousands more cases involved social media evidence during this time period. Even so, this limited survey is an important data point establishing the ubiquitous nature of social media evidence and the importance of best practices technology to search and collect this data for litigation and compliance requirements.

- VIEW ALL 689 CASES & MORE HERE >

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Social Media Ethics Webinar with Lewis Brisbois

On Thursday March 1, I will be speaking along with social media expert lawyer John Browning of Lewis Brisbois, and Josh Rosenberg of LexisNexis in a complimentary webinar addressing ethics and social media evidence.  The webinar will address this fundamental question: As social media evidence is relevant to just about any type of civil or criminal case, and in an age where 65% of adult Americans have at least one social networking profile, how does this impact an lawyer’s ethical duty of competency if they fail to account for relevant evidence from social networking sites in their cases?

1 hour of Ethics CLE is approved in CA, IL, NY, AK, AZ and pending in many other States. You can register here.  We are very excited to be hosting this webinar with over 525 registrations already! I hope you can join us online.

UPDATE (from March 2):  The webinar recording  is now available for your viewing, however, CLE credit is not available for the recording at this time.

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Filed under Best Practices, Case Law, Legal Ethics & Social Media