Technology: Managing social networks and neutrality

Are you really what your “friends” are and what their “friends” are?

Admittedly, the above query is derived from Gillian McKeith’s famous saying, “you are what you eat.” Sadly, however, “you are what your friends are and what their friends are” is increasingly a conclusion in the legal and professional worlds due to the use and abuse of information readily available on social networks.

A very recent example of how social network involvement can hurt someone professionally is a case out of Canada. The case involved the appointment of Montreal lawyer Guy Dufort as an arbitrator for a dispute between Canada Post (Canada’s mail-delivery agency) and the Canadian Union of Postal Workers (CUPW).

At the time of his appointment as arbitrator, Dufort disclosed that nine years previously he had represented Canada Post in a pay equity dispute with CUPW and had for many years been actively involved in the Conservative Party of Canada. CUPW requested he recuse based upon a “reasonable apprehension of bias.” Dufort refused, and CUPW began digging into his background, including his social network “friends” and “activities and interests.”

CUPW learned from Dufort’s Facebook page that he listed two Conservative associations under “activities and interests.” Dufort had also previously listed the Minister for Canada Post as a “friend” and still listed the Minister of Labour as a “friend.” Upon ordering his recusal, Justice Daniele Tremblay-Lamer of the Federal Court of Canada specifically mentioned the information from Dufort’s Facebook page.

Checking social network pages may frequently be a useful and inexpensive research starting point for inside counsel concerned about trade-secret theft and research and development leaks. Start by looking for the names of employees involved with the trade secret or research and development project on the various social networks. Once you have located a name, look to see who that person’s friends are.  Then check for the friends’ friends.

Most professionals over the years have developed friendships with people at competitive companies; they may have attended the same college, perhaps had the same major, or may belong to the same professional societies. Be alert for any such friends. Are any of them relatively recent, since involvement with the project of concern?

How easy is it to get information from a social network page? Perhaps the easiest form of e-discovery is searching a social network. Social network pages are readily accessible, and they tend to keep track of everything.

However, being able to sift through the details on social networks is only possible if the user does not pay close attention to the network’s security settings; what they share and who they share it with can be controlled. Facebook has come under fire on more than one occasion for its lax and confusing security settings. Europe has forced Facebook to make some changes. The reality is many users still do not pay close attention to the security settings.

Sifting through all communications and postings, it may be possible to determine when someone became a friend, who that friend’s friends are, and use that as a starting point for a detailed investigation. The conclusions drawn from such an investigation are not necessarily accurate. The friend may be no more than a social friend. Communication with a friend may have ceased long ago, and in the real world that person would no longer be considered a friend. The social network page would not necessarily show that termination of friendship. The investigator may not care. A reputation may be destroyed.

Other forms of e-discovery are much more difficult and expensive. Social network searching is easy, inexpensive and a useful starting point. Because conclusions drawn from the gathered information are not necessarily correct, further research is strongly recommended, starting with discussing the results with the affected employee.

The best advice for professionals in the business and legal worlds is to use common sense when it comes to social media. Make sure you understand how the technology works, what privacy settings are allowed and what its purpose is. Finally, Edward Fitzgerald’s translation from “The Rubaiyat of Omar Khayyam” is still a good reminder:

“The Moving Finger writes; and, having writ,

Moves on: nor all thy Piety nor Wit

Shall lure it back to cancel half a Line,

Nor all thy Tears wash out a Word of it.”

Contributing Author

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William McDonald

Hon. William F. McDonald (Ret.) is a JAMS neutral based in Orange County, Calif. He combines 35 years of judicial and legal experience with a...

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