David S. Wayne

In today’s day and age, when social media and networking have become an everyday occurrence, legal issues continue to arise.  One such recent issue that has reared its head before the National Labor Relations Board is whether postings by employees on social media sites such as Facebook are protected activities under the scope of the National Labor Relations Act.  As discussed in the November 8, 2010, New York Times article Company Accused of Firing Over Facebook Post, the board is addressing whether limitations on employees’ posting of comments on social media sites constitute improper restrictions on the rights to discuss working conditions and/or unionization.  The import of this issue could be far-reaching and lends further support to why employers should revisit and refine (or establish if one does not exist) policies pertaining to Internet postings by employees.

Using the Internet

I recently defended a case involving allegations that our client, a service industry provider, took equipment and other purported trade secrets from his former employer.  The Internet proved to be an extremely valuable tool in challenging the plaintiff’s claims that the equipment design was proprietary and confidential.  Among other things, we were able to find similar equipment available for sale on eBay, videos of similar equipment being used on YouTube and many other competitors around the country who were using similar technology.  Discovering similar information prior to the onset of the Internet would have been much more costly and difficult.

What I also found of particular note was the willingness of the trial court judge to allow information from these websites to be admitted into evidence without tracking down the persons who created/posted the information.  In advance of a scheduled evidentiary hearing, I asked the court if it would be willing to allow this information (including videos, photos and links to web sites) to be admitted into evidence at an evidentiary hearing in determining whether plaintiff’s claims had merit.  The court indicated that it would allow the use of such information.

It is unclear whether this is something particular to the judge assigned to the case, or whether this is becoming more commonplace in these types of cases.  Either way, the court’s position in our case was very beneficial, made our case easier and less costly to prove, and is something counsel should ask the court about if the need exists.