Whether You "Like" It or Not: The Inclusion of Social Media Evidence in Sexual Harassment Cases and How Courts Can Effectively Control It

IntroductionA company's in-house counsel learns of a potential sexual harassment claim by a female employee against her supervisor and believes the supervisor's alleged actions raise liability concerns for the company.1 Within seconds, counsel finds the employee's Facebook profile through a simple Internet search.2 The employee is a beautiful young girl, and her profile picture shows her in a short, form-fitting dress, making what the in-house counsel considers to be a seductive face.3 "She doesn't look like a girl who would be offended by this supervisor's conduct," the attorney thinks.4 With the insight gained from the ployee's page, the in-house attorney begins to dismantle the sexual harassment claim before it is even filed.5 IfIf a picture is worth a thousand words, then a social media profile is priceless in litigation.6 Social media, also known as social networking, describes any type of social interaction using technology with some combination of words, photographs, video, or audio.7 Social media sites constitute one of the most commonly used forms of electronic communication worldwide, exceeding even email usage in 2009.8 A 2012 Nielson Company social media survey found that people spend more time on social networking sites than any other category of sites, dedicating 20 percent of their time on their personal computer and 30 percent of their time on their mobile device to social media.9 The increased increased and multi-faceted use of social media has dramatically altered the way people share information and interact with one another in both sonal and settings.10 Facebook, Twitter, and Myspace- three of the most visited social media sites-allow users to post graphs and updates, share interests, invite others to attend events and join social groups, and send private messages to other users.11 As aAs aconsequence of its popularity and omnipresence, social media is now one of the most sought-after sources of evidence in litigation worldwide.12 Attorneys in a variety of legal disciplines seek the use of this easily accessible, up-to-date, and desirable information available on available on popular social media sites to bolster their cases.13 For example, many individuals are unusually honest on social media sites, and often post pictures and comments about illegal or provocative activities that can be used to undermine their credibility in litigation.14 Parties may post information or pictures that contradict their claims.15 Social media sites also record interactions with others over time, which may help plaintiffs prove allegations of stalking, cyberbullying, or harassment.16 Additionally, because many social media users either choose to keep their profiles public, or do not fully understand their privacy options, attorneys are able to easily access this attractive evidence simply by browsing the sites.17 For each of these reasons, attorneys are now regularly seeking discovery of social media information from both the parties and the social media sites themselves.18Though social media may provide valuable evidence in some cases, social media evidence presents two specific problems for plaintiffs in sexual harassment cases.19 First, as social media users develop online personas and employees increasingly communicate via social media platforms, the line between a user's private behavior and his or her professional life becomes increasingly blurred.20 In sexual harassment es, this may cause courts to admit social media evidence to show the plaintiff's appearance and actions "at work," even though such evidence might be irrelevant to a sexual harassment claim.21 Second, allowing broad discovery of social media evidence might discourage potential plaintiffs from bringing claims because the social media evidence may be revealed to the defendant during the discovery phase of litigation.22 Although courts have begun to develop methods for izing media evidence, no court has yet identified a sive approach solve these problems. …