CORPORATE COUNSEL SYMPOSIUM XXIII OCTOBER 30, 2012

Facebook Forensics:

Social Media in the Workplace and the Courtroom

Daniel S. Goldman Mayo Clinic Legal Counsel Rochester, Minnesota

Mary B. Thomas Best Buy Enterprise Services, Inc. Senior Director, Legal Richfield, Minnesota

Douglas R. Christensen Dorsey & Whitney LLP (612) 340-8875 christensen.doug@dorsey.com Minneapolis, Minnesota

Marilyn Clark Dorsey & Whitney LLP (612) 492-6885 clark.marilyn@dorsey.com Minneapolis, Minnesota

Program Materials

are available on www.dorsey.com

1. Panel PowerPoint

Facebook Forensics: Social Media in the Workplace and the Courtroom

Daniel S. GoldmanLegal Counsel, Mayo Clinic

Mary B. ThomasSenior Director, Legal, Best Buy Enterprise Services, Inc.

Douglas R. Christensen and Marilyn ClarkDorsey & Whitney LLP

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OVERVIEW

• Winning “Friends” and Influencing People: Using Social Media to Build a Brand

• When Employees Use Social Media to “Build Your Brand” For You: How Much Control Can You Exercise?

• Water Cooler Talk in the 21st Century: Managing Social Media in the Workplace

• From “IM” to “Exhibit 1”: Social Media in Litigation

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Winning “Friends” and Influencing People: Using Social Media to Build a Brand

Percentage of Adults Who Have Profiles on Social Networks(Jan-Feb 2012)

Age Percentage

18-29 86%

30-49 72%

50-64 50%

65 & Older 34%

Source: PEW Internet and American Life Project

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Using Social Media to Build a Brand

• Social networks offer unique opportunities to increase your circle of clients, vendors, employees, and other “friends”

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Using Social Media to Build a Brand

• Bright Idea: Use social media to bring value to your target audience– Information updates– Articles– Blogs– Etc.

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Using Social Media to Build a Brand

Example: Quirky Employment Questions

http://quirkyemploymentquestions.com

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Using Social Media to Build a Brand

Example: Dan Goldman on Twitter @danielg280

(1,290 followers and counting . . . .)

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Using Social Media to Build a Brand

• Hot Issue: Once your business has established a successful social networking account, who owns it –the company or the employee who created it?– PhoneDog LLC v. Kravitz (N.D. Cal. Jan. 30, 2012)

When Employees Use Social Media to “Build Your Brand” For You:

How Much Control Can You Exercise?

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How Much Control Can You Exercise?

• Areas Employers Should Control:– Beware of: Information governed by laws and

regulations protecting confidential information, such as HIPAA and FINRA

– Beware of: Information governed by other laws, regulations, and guidelines potentially relevant to your business, e.g., those promulgated by the FTC

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How Much Control Can You Exercise?

• Areas Employers Cannot Control: Employee Communications Protected under the National Labor Relations Act (“NLRA”)– Costco Wholesale Corp. and United Food and Commercial

Workers Union (NLRB Sept. 7, 2012)

• NLRB Model Social Media Policy– http://www.nlrb.gov/news/acting-general-counsel-releases-

report-employer-social-media-policies

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Water Cooler Talk in the 21st Century: Managing Social Media in the Workplace

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Managing Social Media in the Workplace

What should employers do when they learn of social media activity that:

(1) raises questions about whether an employee has violated company policies or the law;

(2) might otherwise lead to employee discipline;

(3) raises questions about an employee’s workplace conduct and/or performance; or

(4) could be read as a protected “complaint”?

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Managing Social Media in the Workplace

• Key HR Issues / Legal Risks:– Use of social media in recruiting / hiring (discrimination)– Vicarious liability for offensive / harassing posts– When to investigate “complaints” made through social media– Dealing with increased access to personal information that could

potentially affect the workplace • Disability law issues• Safety concerns

– Discipline and firing based on social media activity • Employee violations of policies (anti-harassment, confidentiality)• Be mindful of “protected concerted activity” under U.S. labor law

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Managing Social Media in the Workplace• Issues with monitoring employee social media

activity– Invasion of privacy– Wiretap Act– Electronic Communications Privacy Act– Stored Communications Act– Bar opinions regarding surreptitious “friending”

• State statutes circumscribing ability to monitor– California– Illinois– Maryland

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From “IM” to “Exhibit 1”: Social Media in Litigation

“When I sent the instant message, I didn’t think it was going to be Exhibit #1 at my deposition . . . .”

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Social Media in Litigation

• Dorsey Survey: In the first half of 2012, we identified 319 cases in which evidence from social networking sites played a significant role – Approximately 85% increase over same period in 2011

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Social Media in Litigation

• Discovery and Social Media: How deep does the rabbit hole go?

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QUESTIONS?