Employers Using Facebook for Background Checking: Is It Legal?

More on using facebook et al. in recruiting and hiring (Part II)

Employers Using Facebook for Background Checking, Part III

This might be better suited to Overlawyered than Between Lawyers, but I'm posting it here anyway because it's a great series of posts. One thing I don't see addressed: one of the most powerful features of Facebook (and a host of other social networking sites) is the fine-grained privacy control users have over the visibility their data. Often, only "friends" have access to the kinds of details George discusses. But, lots of people do make their data more generally visible. It's ironic that employment laws are such that though "the public" may be invited to view such information, lucrative damages awards or settlements could be associated with doing so in the context of employment or potential employment.

Ed's recent post "What's Hidden in Your Word Documents?" also is an eye-opener on the topic for those who are not familiar with the workings of the default settings in Office 2007 (that may include some bar regulators in the US).

For a good overview for lawyers, see Mining the Value from Metadata by Dennis Kennedy, Evan Schaeffer and Tom Mighell.

Tom Mighell and Dennis Kennedy have posted the latest episode #5 of The Kennedy-Mighell Report, in which they cover the recent ABA TECHSHOW, legal technology trends for 2007, current developments in electronic discovery, and their upcoming book on collaboration tools for lawyers.

Denise Howell has posted the latest episode of This Week in Law, which includes fellow regular Ernie Svenson. An earlier episode feature Between Lawyers' Marty Schwimmer.

Technorati tags: legal technology podcast electronic discovery between lawyers

As Tom Mighell says, "knowing the right questions to ask in an electronic discovery deposition is crucial, and I'd wager most lawyers haven't had the opportunity to ask many questions along those lines."

A good practical article on an important topic.

Nobody is covering current developments in electronic discovery, especially in e-discovery technology, better than Rob Robinson is on his information governance blog. The blog has pointers to great info on a daily basis.

I don't have much to add to Evan's analysis other than to wonder why a rule directed at requirements for a lawyer protecting the confidentiality of his or her client is being used as the basis to create a prohibition on opposing counsel who do not represent that client from looking at metadata in documents? That seems like a long stretch in logicto me.

Evan points to several good resources on metadata issues, including an article Evan, Tom Mighell and I wrote called "Mining the Value from Metadata."

The money quote from Evan's post:

Given a choice between hiring a lawyer in Florida, where lawyers may not be allowed to use technology as it was intended, and hiring a lawyer somewhere else, why would anyone choose the lawyer from Florida?

From my point of view, this proposed rule once again raises the question of the proper place for state-by-state regulation of lawyers in an Internet era.

Your thoughts are welcomed in the comments to this post.

I hear the wheels turning in the heads of our trial court litigator readers: what I'm describing has some competing aspects. On the one hand, it lets a party respond to a discovery request by saying, gee, we'd be happy to give you that but we just don't have it. On the other, someone, a third party, does have it, and things that might ordinarily be known about and subjected to a document (non)retention policy can and probably will persist in that third party's database.

The article talks about companies employing e-discovery firms proactively, so as not to have to scramble or be caught unawares when the inevitable discovery requests roll in. (Included factoid: "The average company bigger than $1 billion is wrestling with 147 lawsuits.") In this vein, it concludes with Gerald Massey of Fios speculating, "The names we'll associate with the services we provide in three, four, five years from now will be like IBM and EMC and Oracle." I think that's right, but I wonder too if (and doubt whether) many Web 2.0 companies have tried to factor responding to third party discovery into their cost of doing business. By definition, they are bound to be subjected to the expense and inconvenience of more subpoenas duces tecum than would otherwise be the case.

Related, via Genie Tyburski: Web 2.0, Library 2.0, and Librarian 2.0: Preparing for the 2.0 World.

Also related: part 1 and part 2 of my recent appearance on The M Show, where I discuss the procedural, third party discovery aspects of the government's COPA-related subpenas to search companies.

It goes without saying that this state of affairs again raises the "are we safer now?" question and, if you read the entire article, you'll wonder where priorities really lie in the current bureaucratic approaches.

HOWEVER . . .

In the middle of Hayes' article comes one of the most intriguing, even innovative ideas we are likely to see in the field of intelligence analysis.

Consider this quote:

Following several weeks of debate, a consensus has emerged: The vast majority of the 2 million captured documents should be released publicly as soon as possible.

Defense Secretary Donald Rumsfeld has convened several meetings in recent weeks to discuss the Pentagon's role in expediting the release of this information. According to several sources familiar with his thinking, Rumsfeld is pushing aggressively for a massive dump of the captured documents. "He has a sense that public vetting of this information is likely to be as good an astringent as any other process we could develop," says Pentagon spokesman Larry DiRita.

Fascinating stuff. Surely putting thousands of eyes onto these documents must be better that storing them in boxes. It would also be interesting to see what cutting-edge scanning and analytical tools used in electronic discovery could do with these materials.

I encourage you to read the article and draw your own conclusions. I find this story quite troubling and think that it would be a good idea to "open source" this material rather than to keep it in closed boxes. A public debate over the issue would also be worthwhile. Consider this approach in contrast to John Robb's recent comments on the problems of isolated decision-making.

I've found the legal articles I've read on these proposed amendments to use much more measured and sober tones and analogies. I like this approach much better.

That said, I like the column because it looks at the impact of the rules on the IT departments and business departments of companies rather than solely from the view of lawyers. It's an eye-opening discussion of the practical concerns these rules might have.

I've been trying to take a less alarmist tone on electronic discovery issues (I don't think it's really helpful - I want to talk more about rolling up your sleeves and getting things done), so some of this article feels a little "over the top," but I recommend it especially for IT people who want to get a flavor for what may be coming down the road.

The (fun) money quote:

If you think calling the changes to Rules 26 and 37(f) “Chernobyl” is a bit of hyperbole, well then, you can always sit back, do nothing, and wait for the fallout.

When we talk about e-discovery, we're not just talking about e-mail and Word documents with embedded metadata -- we're also talking about your browser's search history. Properly harvested, it can definitely yield some interesting evidence.

I was thinking after we had our discussion of metadata in Word documents the other day on Between Lawyers that electronic discovery could actually be fun - checking for metadata and using all the new electronic discovery tools. Most lawyers, it seems, prefer to stay squarely in the world of paper. I've even heard that some judges make it all but impossible for lawyers who want to get electronic files to obtain them.

Is your lawyer asking you to print out documents for a hoard of high-paid associates to review or more comfortable pawing through a banker's box of papers than mousing through computer files? Maybe it's time for clients to become a lot more concerned about what their legal fees buy them in the world of practice-as-usual. In any event, you'll want to read the column to see how Evan, Tom and I grapple with the question. It's a thorough, well-rounded conversation that will make you think.

The three of us write a regular, more or less monthly column called Thinking E-Discovery on the DiscoveryResources.org site.