“Are you Ready”
Social Media and Mobile Devices in the Work Place
Aparna M. Dave, Senior Counsel, Wells Fargo Bank, N.A.
Seba Kurian , Counsel, Invesco
Jake McKee, Kroll Ontrack
April 8, 2014
29% of employees are anytime/anywhere
employees with 53% using 3 or more
locations and 82% using 7 or mores apps to
work, Forrester.
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Social Media & Mobile Devices in the Work Place
 Statistics and Trends
 Discovery & Preservation
 Privacy & The Stored Communication Act
 Collection and Preservation Methods
 State and Federal Regulatory Impact
 Corporate Usage Policy Best Practices
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Statistics and Trends
Social Media: a staple in everyday communication
 In January 2014, Facebook
Number of Active FB
Users (millions)
surpassed 1.23 billion users
» Twitter reported 243 million users in
February 2014
– Approximately two new members
joining per second
» Linkedin at 277 million users in 2014
 In January 2013, Americans between the ages of 18 64 spent an average of 3.2 hours a day on social
media sites
» Of this statistic, Men are on social media sites 2.6 hours a day
and women 3.6 hours a day
-OTX, Americans’ Daily Time spent Social Networking (2013)
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Social Media: more than personal communication
 More than 80% of companies are using
social media to communicate with potential
clients and drive new business.
-Worldcom, Corporate Social Media Spent to Increase Among B2B Companies Globally According to
Worldcom Survey (May 2011)
 During Super Bowl XLVIII, more than
57% of the ads shown mentioned
Twitter
Many websites now offer 4+ links to
share on social media!
-Marketing Land, New Record For 2014: Hashtags Mentioned in 57% of Super Bowl Ads (Feb. 2014)
 Many companies now leverage enterprise social networks
for communications with the organization:
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Mobile Devices: A.K.A. Digital Appendages
 Bring Your Own Device (BYOD) - Gartner CIO survey
determined 80% of employees will be eligible to use their own
equipment with employee data on board by 2016
 Forrester’s study of US information workers revealed that 37%
are doing something with technology before formal
permissions or policies are instituted.
 Pew research reports that 44 percent of cellphone owners
have slept with their devices for fear of missing a call,
message, or email.
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Discovery & Preservation
Where does discoverable social media reside?
» Comments & Messages
– Tweets, wall comments,
status updates, posts
» Photos
– Profile pictures, albums,
pictures others tag you in
» Videos
» User Information
– LinkedIn resume, things
‘liked,’ username, date of
birth, location, employment &
education info, groups joined
» Metadata
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What social media information is discoverable?
Generally, social media
data is discoverable
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What social media information is discoverable?
 Metadata is data about data
Text of post - not
metadata
Key responsive
metadata!
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What social media information is discoverable?
Is everything discoverable?
Courts are settled that social media is discoverable, but not how much is discoverable
Broad
Narrow
Mailhoit v. Home Depot
U.S.A., Inc., 2012 WL
393063 (C.D. Cal. Sept. 7,
2012): The Federal Rules
do not grant a “generalized
right to rummage at will
through information [a
person] has limited from
public view” absent a Rule
34 showing of “reasonable
particularity” in request for
data.
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Private
Sections?
E.E.O.C. v. Original
Honeybaked Ham Co. of
Georgia Inc., 2012 WL
5430974 (D. Colo. Nov. 7,
2012): Reasoned that
social media data was the
logical equivalent of an
“everything about me”
folder with a bevy of
relevant information.
What social media information is discoverable?
 Early disputes: public versus private information
» What about the private sections of your Facebook?
• Court ordered
production of data
from Facebook and
MySpace account:
privacy is “wishful
thinking”
•Romano v. Steelcase Inc., 907
N.Y.S.2d 650 (N.Y.Sup. Sept.
21, 2010).
• Plaintiff ordered to
preserve existing
information on MySpace
and Facebook: provide
user names and
passwords to opposing
counsel
•McMillen v. Hummingbird
Speedway, Inc., No. 113-2010
CD (C.P. Jefferson Sept. 9,
2010).
• Court ordered
production of user
names and passwords:
private portions of
social media accounts
are “fair game”
•Zimmerman v. Weis Markets,
Inc., No. CV-09-1535 (C.P.
Northumberland May 19, 2011).
You post User Content ... on the Site at your own risk. Although we allow you to set privacy
options that limit access to your pages, please be aware that no security measures are perfect or
impenetrable.
- Romano v. Steelcase Inc. (citing Facebook’s privacy policy (last viewed June 18, 2009))
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Internal Social Media: You wanted us to preserve that…
In Pfizer, Inc. Securities Litigation, 288 F.R.D. 297 (S.D.N.Y.
Jan. 8, 2013), plaintiff-shareholders sought sanctions against
Pfizer for failing to preserve data from “e-rooms.”
The “e-rooms” were internal collaboration applications
maintained by the company for sharing documents and
calendars, archiving, discussion boards and instant messaging.
The court found that this information was relevant because it
would allow the plaintiffs to draw connections and understand
the narrative of events in a way “not necessarily afforded by
custodial production.” The court concluded the company
breached its duty to preserve. Sanctions, were not warranted
because the conduct was merely negligent and the plaintiffs had
not shown that any lost data was, indeed, relevant to their
claims.
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BYOD – But it’s my personal phone…
In Cotton v. Costco Wholesale Corp., No. 12-2731 (D. Kan. July
24, 2013), the court denied the employee-plaintiff’s motion to
compel text messages sent or received by employees on their
personal cell phones, finding that the employee had failed to
show that the employer had any legal right to obtain the text
messages.
In other words, the phones and the data they contained were not
in the “possession, custody, or control” of the employer. This is
one of the first of its kind and observers will have to wait to see
whether the approach is adopted by other courts in cases to
come.
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Privacy & The Stored Communication Act
Who do I seek information from when cooperation ceases?
Does the Stored Communications Act prohibit production of social media?
 Prohibits:
» Electronic Communication Service (ECS) and
» Remote Computing Service (RCS) providers
 From:
» knowingly divulging the contents of
» a communication
» it stores
 Unless the divulgence is:
» to an intended recipient of such communication or
» express permission from the sender is obtained
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Subpeona social
networking site
provider?
Seek court order to obtain party’s
login information?
•
Zimmerman v. Weis Markets, Inc., No. CV09-1535.
McMillen v. Hummingbird Speedway, Inc.,
No. 113-2010 CD.
•
•
Crispin v. Christian Audigier Inc., 717
F.Supp.2d 965.
Who do I seek information from
when cooperation ceases?
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Collection and Preservation Methods
Learning to
Collection
 Assume you discover that:
– Your company is being sued
– An involved employee has relevant non-privileged information on
his LinkedIn profile?
3.
 Your options:
1.
Unassisted
Collection
Social Media
Collection
Tools
2.
“Download
Your
Information”
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1.
Learning to
Unassisted
Collection
Collection
 Nothing wrong with “old school” collection
1.
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2.
•
Simply ‘Googling’ a
name works
extremely well
•
Flag other social
media profiles he has
for review
•
Effective social
media search tools
do exist
•
Use ‘print screen’ to
capture relevant
information
•
Screen/video
capturing programs
do exist
3.
•
Create a log of
exactly how and
when you
documented the
webpage; this is
essential for
authentication
•
Hold on to the
images! Profiles are
‘subject to change’
2.
1.
Learning to
Collection
 Facebook has a tool that can ease collection
1.
2.
“Download
Unassisted
Your
Collection
Information”
3.
•
Navigate to the General Account Settings Page to
•
You then will get an ‘archive’ of that user’s Facebook account; as Facebook explains:
•
Is this everything you need? Maybe. It’s entirely possible that the scope of
discoverable information may be broader than what’s included in the “archive”
•
Remember to document the process extensively
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2.
3.
Learning to
Collection
 New tools in the ediscovery industry
1.
2.
Social Media
Collection
Tools
3.
•
Social media collection tools assist social media collection
•
Some platforms allow you to search social media sites
• With credentials (court ordered or otherwise), or
• From a third party perspective – you get to see what’s public
•
Some solutions allow you to add Boolean logic to search the data pool
• E.g., “fired AND new york”
•
These programs leverage Facebook’s APIs enabling the collection of available
metadata
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Learning to
Collection
 Best Practices
» Consider social media production challenges (e.g. native format)
upfront when negotiating at the Rule 26(f) meet and confer
» Don’t try to collect social media without consent of the owner
» Don’t get overwhelmed: consider enlisting the help of an investigator
or service provider if a case size is massive or deadlines are tight
» Communicate to your client the importance of prior postings to
litigation and the far reaching repercussions of spoliation sanctions
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State and Federal Regulatory Impact
Social Media Policies on the Rise
 Eleven states have passed laws prohibiting private employers
from requesting or requiring that job applicants or employees
provide log-in credentials for their personal social media accounts
» Only 1% of the Littler Mendelson respondents request social media logins
as part of hiring or onboarding process
WA
OR
MI
NV
CA
UT
NM
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IL
CO
AR
MD
Implications: National Labor Relations Act
Employee
Handbook
“Be aware that statements posted electronically
(such as [to] online message boards or discussion
groups) that damage the Company, defame any individual
or damage any person’s reputation, or violate
the policies outlined in the Costco Employee
Agreement, may be subject to discipline”
 Holding: NLRB found that the provision was overbroad; it “has a
tendency” to inhibit protected employee activity in violation of
Section 8(a)(1) of the National Labor Relations Act
 Rationale: Concerted activities protesting Costco’s treatment of
employees (protected) would be encompassed under this policy
 Solution: Carve out exceptions for NLRA protections
Costco Wholesale Corp., 358 NLRB No. 106 (Sept. 7, 2012).
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Implications: Regulation Fair Disclosure (FD)
 Regulation FD prohibits companies registered under Section
12 of the Exchange Act from selectively disclosing material
nonpublic information to investors, analysts, etc. without
concurrently making widespread public disclosure.
» Includes information about earnings, mergers/acquisitions, new products,
and changes in control or management.
 Regulation FD applied to social media:
“[C]ompanies can use social media outlets like Facebook
or Twitter to announce key information in compliance with
[Regulation FD] . . . so long as investors have been
alerted about which social media will be used to
disseminate such information.”
– April 2, 2013 SEC Press Release
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Implications: Federal Law
Eagle v. Moran et al., Civil Action No. 11-4303 (E.D.Pa. Oct. 4, 2012).
 Terminated CEO alleging lost business opportunities
 When plaintiff set up her LinkedIn account, she gave another
employee her password according to internal policies
 Employer used plaintiff’s password to change her LinkedIn profile
to that of the new CEO as well as the password associated with the
account
 Searches for plaintiff resulted in the display of the incoming CEO’s
name, photograph and new position
 Holding:
» Insufficient damages for claim under the Computer Fraud and Abuse Act
» “Likelihood of confusion” element unmet under the Lanham Act
» Employer wins on S/J, state actions go forward
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Social Media Tips: The NLRB’s “Model” Policy
 Serves as a baseline for appropriate corporate social
media policies
 As a starting point, employers should:
» Avoid unrealistic mandates!
» Distinguish between:
– purely personal use of social media at work
– social media use that furthers the interests
of the company (such as contacting
customers or marketing a product)
» Encourage employees to refrain from
personal use of social media while on work
equipment, “unless it is authorized by [a]
manager” or consistent with company policy.”
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Corporate Usage Policy Best Practices
Social Media Policies on the Rise
 Onus is on organizations to set policies regarding social
media use in the workplace
 Proactive social media policies are increasingly
popular among corporations, according to a July 2013
Littler Mendelson survey:
» 64% of respondents created polices regarding employee
social media use during work hours
» 58% had rules for social media use on employer-issued
devices
» 52% had policies addressing employees discussing the
company through their own social media channels
» 10% screened applicants based on social media profiles
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Social Media Tips: Usage Policies
 Articulate clear policies:
» Define appropriate workplace use
» Inform employees that activity on company
devices may be monitored
 Encourage prudent posting:
» Specify what employees can and cannot divulge
» Posts should be honest, accurate, respectful and consistent with
corporate ethics and harassment policies
» Identify consequences of non-compliance
 Train employees:
» Couple social media policy with privacy awareness training
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Social Media Tips: Usage Policies
Ultimately, there is no “one size fits all” approach!
 Policy should reflect corporate culture and law
 Must understand:
» Your company’s brand
» Tolerance for dissent and risk
» Relationship with workforce
 Balance those factors with what the law
requires/allows
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Q&A
Parting Thoughts
 Stay updated on social
media—it will only continue to
expand
 Pay attention to case law, new
legislation, and ethical
guidance
 Train employees on usage
policies
 Balance is key when it comes
to social media usage policies
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“Are you Ready”
Social Media and Mobile Devices in the Work Place
Aparna M. Dave, Senior Counsel, Wells Fargo Bank, N.A.
Seba Kurian , Counsel, Invesco
Jake McKee, Kroll Ontrack
April 8, 2014