Effective July 28, 2013, Washington became the eleventh state to have a law prohibiting employers from, among other things, asking its personnel for the user names and passwords to employee social media accounts. The law does have some limited exceptions, including allowing employers to retrieve content from an employee’s personal social media account in the context of an investigation into an employee’s misconduct, or if an employee is accused of making unauthorized transfers of proprietary information. Even then, however, employers can only access the information if it’s provided by the employee voluntarily. Read More
Patricia E. Alberts
Patricia Alberts practices in the New York office and is a member of the eDiscovery and Information Management Practice Group.
Ms. Alberts consults on electronic discovery and data privacy issues in both criminal and civil matters, foreign and domestic. She advises clients in all stages of active discovery, negotiates international discovery protocols, participates in Rule 26 Meet and Confers and assists in proactive ediscovery planning, such as legal hold procedures, litigation response plans and document retention polices.
Ms. Alberts works with outside counsel and information technology professionals to implement effective, efficient and repeatable strategies to get the best results during the discovery phase of a litigation, while minimizing risk and reducing cost.
Prior to joining Orrick, Ms. Alberts was an electronic discovery consultant for LexisNexis and spent eight years as a litigation associate at an international law firm in New York. She serves as the New York Chair of Orrick's Parents' Forum.
Two recent employment discrimination cases, though differing in their outcomes, make it clear to litigants that information posted on social networking sites (“SNS”) is fair game.
The court in EEOC v. Original Honeybaked Ham Company equated social networking sites to file folders entitled “Everything About Me.” 2012 WL 5430974, *1 (D. Colo. Nov. 7, 2012) After citing some exemplar entries from a class member’s Facebook account, the court reasoned that “[i]f all of this information was contained on pages filed in the ‘Everything About Me’ folder, it would need to be produced.” Id. at *2. The court’s analysis also included reference to the significant amount in controversy, and the high likelihood that the sites will contain relevant information (a determination made in part based on a review of pages “already obtained [from] one affected former employee.”). Id. In an attempt to ensure that only relevant, non-privileged material is disclosed, the court established a two-step review process involving the in camera inspection by a special discovery master and subsequent review by plaintiffs’ counsel before production to the defendant. Id. at *3.
The Central District of California, in Mailhoit v. Home Depot U.S.A., Inc., 2012 WL 3939063, *2 (C.D. Cal. Sept. 7, 2012), also determined that “[g]enerally, SNS content is neither privileged nor protected by any right of privacy.” Id. However, while the Mailhoit court expressed its willingness to consider the grant of access to relevant content on plaintiffs’ SNS pages, the court found fault with all but one of defendant’s requests; (the requests were “not reasonably particular; “impermissibly overbroad;” “fail for vagueness”). Id. at *3-5.