Using Social Media to Reap Benefits, Not Liability

by Ervin Cohen & Jessup LLP
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Construction WorkerA simple search on Linked-In, Facebook, and Twitter reveals that social media is connected with the construction industry in significant ways. In one respect, a growing number of construction professionals intentionally utilize social media to reach out to prospective clients and referral sources. In fact, a 2013 data study by the Construction Marketing Association showed that 96.6 percent of construction professionals use social media in their marketing programs. The most popular platforms were: LinkedIn (91.2%), Twitter (84.2 %), Facebook (82.5%), and YouTube (68.4%).[1] In another respect, many individuals within the construction industry—employees of construction companies and other third parties—use social media to broadcast their work endeavors and or items of interest at the jobsite. In fact, many construction companies themselves have their own Facebook pages or Twitter accounts to market the projects they have done and the workmanship of their products and team.

But what happens when a construction defect lawsuit ensues over the very projects broadcasted over social media? Imagine the following scenarios: (1) a drywall company posts to its Facebook account photographs of an installation project it worked on, which later is alleged to be defective; (2) an employee takes a picture of his workplace ceiling with his cell phone that has signs of cracking and leaking and posts it to his personal Facebook account, and later, that company’s failure to mitigate damages due to that cracking and leaking is challenged and those Facebook posts implicate the company. Will the pictures posted to Facebook be open to discovery from the parties to the litigation? Many courts have answered, YES—both the accounts of a company as well as the personal accounts of employees of a company. In fact, with the increase of employees being allowed to use their personal devices to do their work, the chances that businesses may have to preserve, collect, and produce information from employees’ social media accounts and mobile devices is ever growing.[2]

Sometimes, the courts will reject parties’ attempt to obtain discovery of social media information when it is not properly discoverable under the particular jurisdiction’s law. For example, in a recent negligence action asserted against a contractor, subcontractors, and a city due to their alleged failure to properly maintain the premises outside of a construction project in a safe condition for pedestrians, a Florida court rejected defendants’ attempts to obtain discovery of plaintiffs’ Facebook postings relating to her actions after the alleged incident occurred (her counseling/psychological care, mental health, stress complaints, etc.). Root v. Balfour Beatty Const., LLC, et al, 2014 WL 444005 (Fla. 2d Court of Appeal, February 5, 2014). The Court determined that under the state’s rules of civil procedure her posts were not relevant to the case’s subject matter and they were not reasonably calculated to lead to admissible evidence. Id.

Imagine an additional scenario: a construction company that is party to a construction defect case deletes its Facebook account although possibly relevant information to the lawsuit has been posted. What happens? At least in one case, a federal magistrate judge sanctioned the party (a plaintiff) for spoliation of evidence. Gatto v. United Air Lines, Inc., No. 10-1090-ES-SCM, 2013 WL 1285285 (D.N.J. Mar. 25, 2013) (plaintiff deleted his Facebook account while discovery was ongoing). In another case, a Virginia state judge awarded over $700,000 in sanc­tions for the spoliation of Facebook evidence; $542,000 of that award was directed against the attorney who instructed his client to remove photos from his Facebook page. Allied Concrete Co. v. Lester, 285 Va. 295 (2013).

In light of these realities, below are a few pointers when navigating the social media landscape in the construction industry:

  • Companies should think through the use of company-issued devices versus the use of personal devices for work-related matters. They should debate the pros and cons of each usage, including the implications on a litigation matter. They should also consider the amount of oversight allowed for each type of usage. Many companies have contracts or policies governing such usages.
  • Most companies should also consider having a social media policy to govern firm sponsored social media usage, i.e., social media use on behalf of the company. The policy should outline the purpose of the social media usage, for example: brand building; networking and marketing; resource-sharing; extending customer service; driving sales. It should place limits on who is permitted to access the firm-sponsored social media account(s). It should also limit the kind of information shared to protect data of the company from being offered to the public.
  • Many times companies will utilize a social media policy to govern employee usage of their personal social media accounts while at work and the use the company’s name or logo. Companies considering a social media policy of this nature must be mindful of the laws in place protecting employees’ rights to use social media (such as free speech rights and labor law related rights).[3]
  • When and if litigation ensues, the company must know how to preserve all material related to the litigation, including the company’s social media data as well as the data of its employees.
  • Similarly, companies should have a protocol on meeting with employees who have material potentially related to the litigation to discern what they have, including social media information.
  •  Companies involved with litigation should ensure that they, or rather their litigation counsel, is versed on how to preserve and collect social media data and also how to use it during litigation (such as how to authenticate it in depositions, by declaration, or at trial).[4]

Keeping these pointers in mind may significantly help companies in the construction field to reap the many potential benefits from social media usage and avoid serious liabilities.

[1] See Construction Marketing Association website, 2013 Survey Results Page, http://www.constructionmarketingassociation.org/blog/social-media-for-construction-2013-survey-results/#.U59nBCg8ATI [last accessed June 16, 2014].
[2] See Allison Grande, Employee Facebook Info Making Its Way Into Court, GCs Say, Law360 (Feb. 26, 2013, 12:13AM), http://www.law360.com/articles/418464/employee-facebook-info-making-its-way-into-court-gcs-say.
[3] For example, the National Labor Relations Act extends to protect work-related conversations conducted on social media. See National Labor Relations Board website page on Social Media, http://www.nlrb.gov/news-outreach/fact-sheets/nlrb-and-social-media [last accessed June 16, 2014].
[4] For further information, see Valerie D. Escalante, Litigation and Social Media: Anticipating and Preparing for Social Media’s Effect on Your Clients and Their Cases, p. 12, http://www.riversidecountybar.com/Documents/Magazine-2013/Riverside-Lawyer-Magazine-volume-63-5-May-2013.pdf.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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