Tag Archives: LinkedIn

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

Can Lawyers Be Disqualified by Merely Viewing a Linkedin Profile? The Implications of Indirect Social Media Communications and Legal Ethics Rules

With attorneys and their hired consultants routinely collecting social media evidence for investigation and eDiscovery purposes, it is important to be aware that such activity can generate various direct and indirect communications to the subject account owners.  Sending a Facebook “friend” or a LinkedIn “connect” request are obvious examples, but there are also less overt means of social media communications. For instance, if a hypothetical law firm named Smith & Wesson were to merely follow a witness on Twitter, the service will automatically email the witness with a notification that Smith & Wesson is now following her. Additionally, it is all too easy when viewing a Facebook page to inadvertently “like” an item or accidentally send a friend request through a single mouse click.  And if you simply view another’s Linkedin profile while logged into your own account, that person will often be notified that you viewed his or her profile page.  Ethical Implication

For lawyers and their hired consultants and investigators, all this can be very problematic considering legal ethics rules that strictly regulate communications with represented parties and even jurors connected to a case. Several local and state bar associations have issued legal ethics opinions discussing this issue specific to collecting social media evidence. On December 6, X1 Discovery hosted a live webinar to delve deeper into this topic with the esteemed Ralph Losey of Jackson Lewis as the featured speaker. Ralph is the lead eDiscovery partner at Jackson Lewis and the author of “The eDiscovery Team,” considered by many to be the best legal eDiscovery blog on the planet. You can register for the recorded version of this webinar at this link here. (One hour of ethics CLE credit will be available to California attorneys).

From our perspective, this critical concern involving indirect social media communications and legal ethics underscores the importance of employing best practices technology to search and collect social media evidence for investigative and eDiscovery purposes.  Collecting evidence in a manner that prevents, or at minimum, does not require that attorneys and their proxies directly or indirectly communicate with the subjects from whom they are collecting social media evidence is a core requirement for solutions that truly address investigative and eDiscovery requirements for social media. If user credentials to the social media account have been properly obtained, that is obviously ideal. However, in many instances lawyers must resort to searching and collecting publicly available information. In such situations, it is crucial that the law firm and/or its hired experts conduct such collections in the proper manner.

For instance, X1 Social Discovery software features public Facebook capture that can search and collect publicly available Facebook pages without directly or indirectly notifying the account holder. This is critical functionality for eDiscovery preservation. Additionally, X1 Social Discovery accesses and displays Facebook pages in read-only mode, preventing metadata alternation, inadvertent friend requests or “like” tagging through a simple slip of the mouse. X1 Social Discovery includes other features concerning Twitter and Linkedin that also prevent indirect communications while effectively collecting data from those sites. We will be highlighting those features in the next few weeks, but in the meantime, we hope you enjoy our webinar.

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