social media – Page 3 – Attorney Evan Brown

March 1, 2014 Contracts, Evidence

Daughter’s Facebook post costs dad $80,000

A recent case illustrates why (1) it is important for parties to abide by the confidentiality provisions of settlement agreements, and (2) people who learn confidential information should keep their social media mouths shut.

Plaintiff sued his former employer (a private school) for age discrimination and retaliation. The parties later settled the case and entered an agreement containing the following provision:

13. Confidentiality … [T]he plaintiff shall not either directly or indirectly, disclose, discuss or communicate to any entity or person, except his attorneys or other professional advisors or spouse any information whatsoever regarding the existence or terms of this Agreement … A breach … will result in disgorgement of the Plaintiffs portion of the settlement Payments.

After the parties signed the settlement agreement, plaintiff’s college-age daughter posted this on Facebook:

Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.

Defendant school district refused to pay a portion of the settlement payments ($80,000), claiming plaintiff’s disclosure of the settlement to his daughter violated the confidentiality provision. Plaintiff asked the trial court to enforce the settlement agreement, which it did. Defendant sought review with the Court of Appeal of Florida. On appeal, the court agreed with the school and reversed.

The court found that “before the ink was dry on the [settlement] agreement, and notwithstanding the clear language of section 13 mandating confidentiality, [plaintiff] violated the agreement by doing exactly what he had promised not to do.” And his daughter “then did precisely what the confidentiality agreement was designed to prevent, advertising . . . that plaintiff had been successful in his age discrimination and retaliation case against the school.”

Gulliver Schools, Inc. v. Snay, — So.3d —, 2014 WL 769030 (Fla.App. 3 Dist. Feb 26, 2014)

Photo credit Flickr user haikus under this Creative Common license.

February 11, 2014 Copyright, Unfair Competition

Co-founder liable for sending company’s social media followers to new competing company’s Facebook page

The owners of an LLC successfully published a magazine for several years, but the business declined and the company eventually filed bankruptcy. While the bankruptcy proceedings were still underway, one of the owners started up a new magazine publishing the same subject matter. He essentially took over the old company’s website to promote the new magazine. And he posted to the LLC’s Facebook page on three separate occasions, “reminding” those who liked the page to instead like his new company’s Facebook page.

The bankruptcy trustee began an adversary proceeding against the owner asserting, among other things, breach of fiduciary duty, unfair trade practices, and copyright infringement. The bankruptcy court held a trial on these claims and found the owner liable.

On the breach of fiduciary duty claim, the court equated the “reminding” of Facebook users to visit and like the new company’s Facebook page was equivalent to using the company’s confidential information. Similarly, as for the unfair trade practices claim (under the Louisiana Unfair Trade Practices Act), the court found that social media is “an important marketing tool,” and held that “taking away followers of [the old company] and diverting them to [the Facebook page of the new company]” was an unfair trade practice.

On the copyright infringement claim, the court found that the images and articles on the website belonged to the old company under the work made for hire doctrine and that the owner had not obtained consent nor paid compensation for their use in connection with the new enterprise.

In re Thundervision, L.L.C., 2014 WL 468224 (Bkrtcy.E.D.La. February 5, 2014)

Photo credit: Flickr user 1lenore under this Creative Commons license.

February 10, 2014 First Amendment

Police department did not violate First Amendment by demoting officer who posted Confederate flag on Facebook

Case illustrates the “frequent gamble” one makes when posting on social media.

When you hear about Georgia, the name Duke, dealing with the cops, and the Confederate flag, you think Hazzard County, right? Or better yet, Daisy Duke. This case had a number of those elements, but presented a much more serious free speech question than Bo or Luke could have ever done.

Plaintiff (named Duke), a captain at Georgia’s Clayton State University police department, posted a picture of the Confederate flag to his Facebook account with the caption “It’s time for the second revolution.” He was not on duty when he posted it, nor did he intend it to be visible by everyone (just friends and family). He claimed that he wanted to “express his general dissatisfaction with Washington politicians.” At the time, the police department had no social media policy that would have prevented the post.

The chief of police demoted plaintiff and cut his pay by $15,000, stating that the Facebook post was inappropriate for someone in plaintiff’s position, and that officers should not espouse political views in public.

Plaintiff sued the police chief alleging, among other things, that his demotion over the Facebook post was a retaliation that violated his First Amendment rights. Defendant moved to dismiss. The court granted the motion.

It held that the police department’s legitimate interest in efficient public service outweighed plaintiff’s interest in speaking. The determination on this issue depended heavily on the content of the communication, and the fact that defendant was a police officer.

While the court acknowledged that plaintiff intended to express his disapproval of Washington politicians, it found that “on its face his speech could convey a drastically different message with different implications.” The court noted that order and favorable public perception were critical. “[A] police department is a ‘paramilitary organization, with a need to secure discipline, mutual respect, trust and particular efficiency among the ranks due to its status as a quasi-military entity different from other public employers.'” And police departments have a particular interest in maintaining “a favorable reputation with the public.” In sum, the court found, the speech at issue was capable of impeding the government’s ability to perform its duties efficiently.

The fact that the post was made off-duty and just to friends and family did not dissuade the court from finding the demotion to be proper. A local television station picked up the story that plaintiff had made the post. The court noted that “this illustrates the very gamble individuals take in posting content on the Internet and the frequent lack of control one has over its further dissemination.”

Duke v. Hamil, 2014 WL 414222 (N.D.Ga. February 4, 2014)

February 6, 2014 Electronic Discovery, Evidence

Another court puts an end to a social media discovery fishing expedition

Plaintiff sued a construction company and certain municipal authorities for negligence and loss of parental consortium after her toddler son was seriously injured in front of a construction site. Defendants sought broad discovery from plaintiff’s Facebook account, to which plaintiff objected in part. But the trial court required plaintiff to answer the discovery. So plaintiff sought review with the appellate court. On appeal, the court overturned the trial court.

It held that defendants’ discovery requests were overbroad and compelled the production of personal information that was not relevant to plaintiff’s claims.

Defendants had sought copies of postings on plaintiff’s Facebook account dealing with:

Any counseling or psychological care obtained by plaintiff before or after the accident
Relationships with [her injured son] or her other children, both prior to, and following, the accident
Relationships with all of plaintiff’s children, “boyfriends, husbands, and/or significant others,” both prior to, and following the accident
Mental health, stress complaints, alcohol use or other substance use, both prior to and after, the accident
Any lawsuits filed after the accident by plaintiff

The court observed that one of the defendants’ arguments to the trial court essentially conceded it was on a fishing expedition. The attorney stated, “These are all things that we would like to look under the hood, so to speak, and figure out whether that’s even a theory worth exploring.” And the magistrate judge in the trial court (though ordering the discovery to be had) acknowledged that “95 percent, or 99 percent of this may not be relevant,” and expressed some misgivings at the possibility that large amounts of material might have to be reviewed in camera.

Finding that the trial court order departed “from the essential requirements of the law” because it was overbroad and required the production of irrelevant personal information, the court quashed the discovery requests.

Root v. Balfour Beatty Const. LLC, — So.3d —, 2014 WL 444005 (Fla.App. 2 Dist. February 5, 2014)

January 20, 2014 Electronic Discovery

Bullied student did not have to hand over all of his social media content in lawsuit against school district

A student sued the school district in which he attended high school for failing to protect him against bullying. The school district served discovery requests on the student seeking electronic copies of everything he did on social media during the time period of the alleged bullying. When the student refused to produce all of his social media content, the school district moved to compel.

The court held that the student did not have to produce all of his social media content, but had to produce any materials that revealed, referred, or related to any “emotion, feeling, or mental state.” The court looked to the case of E.E.O.C. v. Simply Storage Management, LLC, 270 F.R.D. 430 (S.D.Ind.2010) to find that the mere fact that the student had social communications was not probative of any mental or emotional state. Rather, the school district would be entitled to discover whatever communications were relevant to the claims or defenses in the matter.

In the social media discovery context, this meant something less than the student’s entire social media history:

To be sure, anything that a person says or does might in some theoretical sense be reflective of her emotional state. But that is hardly a justification for requiring the production of every thought she may have reduced to writing or, indeed, the deposition of everyone she may have talked to.

Despite this attempt by the court at limitation, one is left to wonder whether the scope of the court’s order — requiring production of materials that revealed, referred, or related to any “emotion, feeling, or mental state” — is so vague as to be of no real help. Scarcely anyone’s casual social media content (let alone the content of the typical teenager) contains material that is void of emotion, feeling or mental state. Tweets, comments, status updates and wall postings drip with pride, humor, loneliness, angst, and the rest of the spectrum of human sentiment.

D.O.H. ex rel. Haddad v. Lake Central School Corp., 2014 WL 174675 (N.D.Ind. January 15, 2014)

Evan Brown is a Chicago attorney helping businesses and individuals identify and manage issues dealing with technology development, copyright, trademarks, software licensing and many other matters involving the internet and new media. Call him at (630) 362-7237 or email ebrown@internetcases.com

February 20, 2013 Evidence, Litigation, Trademarks

Court considers Yelp posting as evidence of potential consumer confusion in trademark case

Posting by confused consumer was not hearsay.

You Fit, Inc. v. Pleasanton Fitness, LLC, 2013 WL 521784 (M.D.Fla. February 11, 2013)

In a trademark case between competing health clubs, the court considered a Yelp posting in entering a preliminary injunction, finding that while the anonymous posts were not conclusive evidence of actual confusion, they were indicative of potential consumer confusion.

The dispute centered over the use of “You Fit” and “Fit U” for health clubs. A Yelp user posted the following:

I am soo [sic] confused. I was a member at Youfit in [Arizona] and when I moved back to [California] I saw this place by my house and thought great my gym is here! When I went into the gym, I realized it was called Fit U. They use the same basic color scheme on their sign and the motto seemed the same. When I asked the girl at the desk, … [she] said her owner created this brand. I said what are you [ sic ] rates? Seemed very similar to me as when I was a member at Youfit. Very confusing and a big let down.

The court rejected defendant’s hearsay argument. It noted that affidavits and hearsay materials which would not be admissible evidence for a permanent injunction may be considered if the evidence is appropriate given the character and objectives of the injunctive proceeding. With no analysis as to why, the court found the Yelp posting appropriate to consider at this stage of the case.

Moreover, the court observed in a footnote that the Yelp post was not hearsay to begin with. It was not being offered to prove the truth of the matter asserted, but to demonstrate the consumer’s confusion — a then-existing mental state of the declarant, which is an exception to the hearsay rule. This is an interesting finding. The hearsay and non-hearsay uses of the post both turn on the same content, particularly the statement “I am soo [sic] confused.” That statement is the matter asserted (and in such capacity, excludable hearsay). And it is also the mindset of the declarant (and in such capacity, subject to an exception to the hearsay rule).

The court’s opinion does not address what one might see as the real problem with the Yelp evidence — its authenticity. Perhaps the parties did not bring that up. But one does not have to venture far in imagination to see how a crafty plaintiff could generate, or direct the generation, of self-serving social media content that would be helpful as evidence in a litigated matter.

November 20, 2012 Employment

Facebook activity did not support claim that employee solicited former employer’s clients

About the Author: Evan Brown is a Chicago technology and intellectual property attorney. Need assistance? Call Evan at (630) 362-7237, send email to ebrown [at] internetcases.com, or follow him on Twitter @internetcases.

Invidia, LLC v. DiFonzo, 2012 WL 5576406 (Mass.Super. October 22, 2012)

Defendant hairstylist signed an employment agreement with plaintiff that restricted her from soliciting any of plaintiff’s clients or customers for 2 years. Four days after she quit plaintiff’s salon, her new employer announced on Facebook that defendant had come on board as a stylist. One of defendant’s former clients left a comment to that post about looking forward to an upcoming appointment.

Either before or after she left plaintiff’s employ (the opinion is not clear about this), defendant had become Facebook friends with at least 8 of the customers she served while working for plaintiff.

Plaintiff sued for breach of contract and sought a preliminary injunction. The court denied the motion, in part because plaintiff failed to show evidence that defendant had violated the nonsolicitation provision.

The court found that it did not constitute solicitation of plaintiff’s customers to post a notice on Facebook that defendant was beginning work at a new salon. The court said it would have viewed it differently had plaintiff contacted a client to tell her that she was moving to a new salon, but there was no evidence of any such contact.

As for having clients as Facebook friends, the court noted that:

[O]ne can be Facebook friends with others without soliciting those friends to change hair salons, and [plaintiff] has presented no evidence of any communications, through Facebook or otherwise, in which [defendant] has suggested to these Facebook friends that they should take their business to her chair at [her new employer].

See also, TEKsystems, Inc. v. Hammernick.

Photo courtesy Flickr user planetc1 under this Creative Commons license

November 15, 2012 Electronic Discovery, Privacy

Court orders in camera review of injured plaintiff’s Facebook content

Richards v. Hertz Corp., — N.Y.S.2d —, 2012 WL 5503841 (N.Y.A.D. 2 Dept. November 14, 2012)

Plaintiff sued defendant for personal injury. Defendant saw a photo plaintiff had publicly posted on Facebook of herself skiing. When defendant requested plaintiff to turn over the rest of her Facebook content (presumably to find other like-pictures which would undermine plaintiff’s case), plaintiff sought a protective order. The trial court granted the motion for protective order, but required plaintiff to turn over every photo she had posted to Facebook of herself engaged in a “sporting activity”.

Defendants appealed the entry of the protective order. On review, the appellate court reversed and remanded, finding that defendants had made a showing that at least some of the discovery sought would result in the disclosure of relevant or potentially relevant evidence.

But due to the “likely presence” of private and irrelevant information in plaintiff’s account, the court ordered the information be turned over to the judge for an in camera review prior to disclosure to defendants.

Whether the plaintiff effectively preserved her Facebook account information may be an issue here. The facts go back to 2009. One is left to wonder whether and to what extent plaintiff has not gone back and deleted information from her account which would bear on the nature and extent of her injuries. It goes to show that social media discovery disputes can take on a number of nuances.

Photo courtesy Flickr user decafinata under this Creative Commons license.