Using Social Media Posts as Evidence in an Investigation

Under the right circumstances, wall posts, status updates, photos, check-ins and tweets can be used to support or defend a case.

Posted by Lindsay Khan in on December 7th, 2011

Is your employee vacationing somewhere sunny while on sick leave? Or is she, perhaps, enjoying a jog through the park while off on disability with a broken leg? You found out about these events because of posts made on social media sites, but can you use the information as evidence in an investigation?

Social Media Findings as Evidence

Wall posts, status updates, photos, check-ins and tweets have all been used as evidence in workplace investigations. In the Zimmerman v. Weis Markets Inc. case, Zimmerman was an employee of a subcontractor of Weis Markets and was seeking damages for an injury that occurred at work. Zimmerman claimed that an accident seriously and permanently impaired his health.  Weis Markets reviewed the public portions of Zimmerman’s Facebook and MySpace pages, and felt that there might be some additional information to refute the damage claims in the private sections of his profile.

On the public portions of his profile, the company found photos of Zimmerman engaging in some of his favorite activities after the accident took place at work. They knew the photos were from after the accident because his scar from the accident was visible in the pictures.

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The court decided that Zimmerman had to hand over his passwords and login information to the counsel for Weis Markets so that they could access the private sections of his Facebook and MySpace accounts. The opinion released by the court said:

Zimmerman voluntarily posted all of the pictures and information on his Facebook and MySpace sites to share with other users of these social network sites, and he cannot now claim he possesses any reasonable expectation of privacy to prevent Weis Markets from access to such information.

By definition, a social networking site is the interactive sharing of your personal life with others; the recipients are not limited in what they do with such knowledge. With the initiation of litigation to seek a monetary award based upon limitations or harm to one’s person, any relevant, non-privileged information about one’s life that is shared with others and can be gleaned by defendants from the internet is fair game in today’s society.

What Employers Need to Consider

You won’t always be granted permission to obtain login information and passwords from an employee under investigation. In Michael Schmidt’s blog post “Employers Can Discover Employee Facebook Posts, But….,” Schmidt uses the Patterson v. Turner Construction Company to remind employers that their requests must be “made in the right kind of case, at the right stage of the case, and have the right scope.”

Employers also have to be careful about how they access information posted on an employee’s social media profile. Attorneys and investigators cannot misrepresent who they are in order to get access to join their opposition’s private social media network. For example, you cannot create an account under an alias, “friend” the employee under investigation and then expect to use that information to support your case – the evidence won’t be admissible.


Marketing Coordinator

Lindsay Khan is the marketing manager for i-Sight Software. With an Honours Bachelor of Commerce degree in marketing from the University of Ottawa, she brings business acumen to the subjects she covers for the company blog and website. Lindsay compiles monthly newsletters, writes and promotes downloadable guides and press releases, promotes webinars and manages our online communities.

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