Your Social Media Activity May Be Used Against You In Court

Most people use some form of social media. Some of the most heavily-trafficked social media sites are Facebook, Twitter, LinkedIn, Instagram, Pinterest, Tumblr and Google+. Ironically, despite the fact that social media users voluntarily post photos and text on these sites, I do not think most people consider it to be public information. At least, they do not expect it to pop up in the discovery phase of their lawsuit, which is the time during a case when the opposing party can request information relating to their claims (including emails, paper records, etc.).

Even though social media sites generally have some form of privacy setting, the sites do not guarantee complete privacy. Because of that fact, many courts have ordered litigants to turn over their social media content to the opposing side during discovery.  Litigants should be aware that potentially discoverable information includes social media profiles, wall postings, current and historical pages, including deleted pages, and related metadata (e.g. geotags).

One example of how social media can lead to problems in litigation is as follows:

Bob claims that he hurt his back in a car accident and that it makes everyday tasks more difficult for him. One week after filing a lawsuit against the driver who ran a red light and hit him, Bob uses Foursquare to “check in” at the gym down the street. Bob’s friend also posts a photograph on Facebook of Bob, which is time and date stamped, tags Bob and captions it “pumping iron.” During discovery, the other side asks Bob to turn over all social media content related to his claimed injuries. Even though Bob’s social profile is set to “private - friends only,” the judge orders him to turn over the content. Bob’s case is damaged by his social media content because he looks like he was not truthful about his injuries.

To protect yourself, you should assume that anything you post online can become a part of your case. In addition, check the settings on your smart phone (e.g. iCloud and location services settings) so that you are informed about what data your electronic device is collecting.  In sum, courts have become more familiar with social media and you should be aware that your activity on social media sites could be used against you in your case. 

The Attorney-Client Privilege: Steps to Preserving the Confidentiality of Your Communications With Your Attorney

The Attorney-Client Privilege Prevents Discovery Of Communications Between Attorney And Client In Certain Circumstances

Most people are aware that their discussions with their doctor are protected by the physician-patient privilege. However, many people are not aware that the law affords a similar protection to their communications with their attorney.

The attorney-client privilege protects communications between an attorney and his or her client that are made in confidence for the purpose of obtaining or providing legal assistance for the client.  For example, if you are involved in litigation and are deposed by the opposing party, the attorney-client privilege can prevent the other side from discovering what you and your attorney discussed. Similarly, in court during a trial, the other side cannot make you divulge those communications which you had with your attorney in which you were seeking legal advice. 

A Client Can Waive The Attorney-Client Privilege If He Or She Discloses Otherwise Protected Communications To A Third Party

However, a client can waive the privilege by disclosing otherwise privileged communications to a third-party. What does this mean? Those communications, which were once protected and not subject to discovery by the opposing party, may no longer be protected. If you waive the privilege, the other side may ask you questions about what you discussed with your legal counsel. 

The disclosure of privileged communications to a third-party does not just mean affirmative, voluntary disclosure, such as when you tell your friend what you and your attorney discussed. A waiver can also occur if you talk loudly in public with your attorney and others overhear your discussion. Similarly, if you invite your friend to a meeting with your attorney and he or she sits in on the conversation, those communications are no longer privileged.

There is a limited safe harbor for inadvertent disclosures where a client took reasonable steps to prevent disclosure and takes steps to correct the error. However, it is better to be safe than sorry and to prevent waiver in the first place.

Email And The Attorney-Client Privilege

One of the trickiest areas involving waiver and the attorney-client privilege is in the area of email communications. Here are some steps you can take to prevent waiver of the attorney-client privilege when you communicate with your attorney over email:

1.     Do not send email to your attorney on your work email account. Employers can and do monitor their employees’ accounts and, many times, have language in their employees’ handbooks to that effect. I have been involved in a case in which the court ruled that, because the client communicated with his attorney using his work email account, the client’s emails were no longer privileged. If you have to email your attorney, always use your personal email account (ie. Gmail, hotmail, yahoo mail, etc.).

2.     Do not copy others on your emails with your attorney.

3.     Do not forward your emails with your attorney to anyone.

4.     It is preferable not to use your workplace computer, workplace tablet or work cell phone to send emails to your attorney (even if you are only using your personal email account on those devices). Using your personal smartphone or making a private phone call from your car is your best bet. However, I understand that this is not always feasible and, generally, my impression is that the law does provide greater protection to emails sent on workplace computers from personal accounts (e.g. gmail, hotmail) because employees have a greater expectation of privacy in their personal email accounts.

I am always interested in tips that I can give to clients regarding best-practices for preserving the attorney-client privilege and will update this list as I discover new ones.

Pregnancy Discrimination Caselaw Update

If you have been treated unfairly at work, you may be wondering whether you have a claim. Every case is different and it is best to consult with an attorney about the specific facts of your situation. However, it is sometimes helpful to read about other cases because they can illustrate some of the ways in which the law protects Illinois employees from discrimination. I am particularly interested in pregnancy discrimination cases and below are some summaries of recent cases in Illinois and the U.S. Supreme Court.

The U.S. Supreme Court Clarifies The Pregnancy Discrimination Act’s Language

In March 2015, the U.S. Supreme Court decided a case called Young v. United Parcel Service, Inc.  In that case, the court interpreted the language of the federal Pregnancy Discrimination Act.

Young was a part-time driver for UPS. After Young became pregnant, her doctor told her she should not lift more than 20 pounds. Young and other UPS drivers were required to be able to lift 70 pounds.  UPS failed to accommodate Young’s pregnancy-related lifting restriction and told her that, while under the lifting restriction, she could not work.

In contrast to UPS’s failure to accommodate Young for her workplace restriction, UPS had previously accommodated workers who had work restrictions similar to Young’s, including those who were injured on the job or had disabilities under the Americans with Disabilities Act. Young argued that UPS’s policies, which afforded a light-duty-for-injury option to other persons but not pregnant workers, were discriminatory and violated the Pregnancy Discrimination Act.

The Pregnancy Discrimination Act states as follows:

“Women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.”

In interpreting the Act’s language, the Supreme Court ruled that a pregnant worker can make a case by showing  (1) that she belongs to the protected class; (2) that she sought accommodation; (3) that her employer did not accommodate her; and (4) that her employer did accommodate others similar in their ability or inability to work.

Peggy Young’s attorney, who was my employment discrimination professor in law school, reached a wonderful result in this case, which is a step forward in protecting women’s rights in the workplace.

Former Administrative Assistant Sues Real Estate Broker For Pregnancy Discrimination In Illinois Federal Court

In Illinois federal court, a former administrative agent, Elizabeth Leone, sued a real estate broker for pregnancy discrimination in a case called Leone v. Naperville Professionals, Inc. While working for Naperville Professionals, Leone notified her supervisor that she would need three months’ leave for the birth of her son. Before taking maternity leave, Leone suffered from hyperemesis, a pregnancy-related condition characterized by severe nausea, vomiting and weight loss. Doctors prescribed her bedrest and she missed work.  

Upon Leone’s return to work and prior to taking maternity leave, her employer assigned her less responsibility on a lucrative account and, as a result, she lost opportunities for commissions. Leone then took maternity leave and, when she returned to work, was fired. Naperville Professionals replaced Leone with a new assistant who was not pregnant and was not a new mother. Leone sued Naperville Professionals under federal pregnancy discrimination laws.

Former Guest Services Representative Sues Holiday Inn Express Corporate Owner for Pregnancy Discrimination In Illinois Federal Court

In another recent Illinois federal case, a former guest services representative, Bogustawa Frey, sued the corporate owner of a Holiday Inn Express in Algonquin in a case called Frey v. Coleman. Frey sued under several theories of discrimination, including state and federal pregnancy discrimination laws.

Regarding her pregnancy discrimination claims, while working as a guest services representative for the company, Frey told her supervisor that she was pregnant. The company then cut Frey’s hours, declined her the promotion that it had promised her and moved her to the night shift without giving her the pay raise normally associated with that move. The company also disregarded Frey’s requests for accommodations for her pregnancy-related conditions, including swollen ankles and back pain. 

The Scope of Workplace Protections For Pregnant Employees In Illinois Under The IHRA

The Illinois Human Rights Act (“IHRA”) protects Illinois employees by prohibiting certain categories of discrimination in the workplace.

Effective January 1, 2015, The Pregnancy Discrimination and Accommodation Amendment (“the Pregnancy Amendment”) added protections against pregnancy discrimination to the IHRA.

As a brief overview, the Pregnancy Amendment requires certain employers to post notices, update their employee handbooks and provide reasonable accommodations to pregnant employees.

What is a pregnant employee?

But what is a “pregnant” employee? This may seem like a silly question, but the Pregnancy Amendment defines pregnancy broadly to mean (1) pregnancy, (2) childbirth, or (3) medical or common conditions related to pregnancy or childbirth. Thus, because the scope of coverage extends to conditions related to pregnancy or childbirth, it stands to reason that in some instances protections will be afforded to women who are no longer "pregnant" (i.e., those experiencing a post-labor condition).

The Legislature Intended To Protect All Pregnant Employees, Not Just Those Employees With High-Risk Pregnancies

The legislative history of the Pregnancy Amendment provides some guidance on the scope of protections afforded by the Pregnancy Amendment. For example, an April 10, 2014 House floor debate transcript clarifies that the legislature intended that the Amendment apply to all pregnancies, not just high-risk pregnancies. A copy of the transcript is linked. (See pages 112-129 for relevant discussion).

Additionally, the May 20, 2014 Senate floor debate further illuminates the intent behind the “common conditions” language:

SENATOR RIGHTER: So I get what a medical condition is, but, in this context, what do you mean by common condition?

SENATOR HUTCHINSON: A common condition are [stet.] those things that are commonly known to be a condition of pregnancy, such as the need to go to the bathroom more frequently or the need to drink water more frequently. (May 20, 2014 Senate Transcript at page 115)

45 out of 50 U.S. States Provide Some Level Of Workplace Protection Against Discrimination To Pregnant Employees

Regarding protections afforded to pregnant employees outside of Illinois, the U.S. Department of Labor provides information on its website.  Per the U.S. DOL, 45 out of 50 states provide some level of workplace protection to pregnant employees. The site is a good source for links to other state legislation and cases on this topic. However, some of the information provided by the U.S. Department of Labor on its website is not accurate and no one should rely on the website for legal advice.

In addition to the Pregnancy Amendment, various federal statutes provide additional protections to Illinois employees under certain circumstances, including Title VII, the Family and Medical Leave Act and the Americans with Disabilities Act. 

My Thoughts on Making a Murderer

     Several people have asked me for my opinion of the Netflix documentary Making a Murderer. Their question boils down to two parts. First: Do you think Steven Avery is guilty? Second: Is this documentary as shocking to a lawyer as it is to the rest of us? Setting aside the first question, the answer to the second is: Yes. Absolutely.

     Dean Strang, one of Avery's defense attorneys, commented on Avery's nephew Brendan Dassey's case in an interview with Madison newspaper The Cap Times as follows: "The longer I'm in [this work], the more I tend to think about or at least focus on and worry about broader systemic failings or weaknesses and Brendan Dassey's case was just a vivid example, I think, of some systemic failings and fault lines that haunts me and provides a lot to think about." His quote sums up the takeaway for me and, I think, for most attorneys who have seen Making a Murderer.

     That aside, there are certain lessons from Making a Murderer which are important for any person, whether facing civil litigation or criminal charges, to keep in mind.

1. Do not talk to lawyers for the other side by yourself: always have your attorney present. 

     One of the most disturbing aspects of Making a Murder is defense attorney Len Kachinsky's handling of Brendan Dassey's case. For those who are unfamiliar with the series, in short, Kachinsky serves Dassey, an intellectually disabled 16-year-old boy charged with first degree intentional homicide (among other things), up on a silver platter to Wisconsin state prosecutors. Kachinsky  allows Dassey to be questioned alone - without Kachinsky present.  Per the documentary, Manitowoc County sheriffs coerce Dassey into a confession. A jury then finds Dassey guilty.

    Never talk to lawyers for the opposing side without an attorney present. Speaking with the other side without an attorney present is potentially damaging to your case. Your attorney should accompany you to negotiations, depositions, etc. Furthermore, once you have retained an attorney, you should not communicate with opposing counsel alone over the phone or by email. Always allow your attorney to communicate with opposing counsel on your behalf.

2.  Details matter and your attorney needs all the facts in order to effectively represent you

     Steven Avery's case is complex but his defense team scorches the earth to provide the best legal representation possible to their client and grapple with facts, both good and bad. They mold the cards they are dealt into their defense strategy and do a thorough, professional and competent job.

     It is better for your attorney to know about bad facts beforehand than for them to come to light during discovery or at trial. The information will most likely come out during discovery, when the court rules allow the other side to go digging for information, or worse - at trial. The more your attorneys know in the beginning, the better they will be able to protect you throughout the case.You should always be honest with your attorney and communicate the full range of facts - both good and bad - which relate to your case.

3. Your attorney should listen to you and should keep you well-informed.

     In Making a Murderer,  Kachinsky does not appear to adequately communicate with or listen to his client.  Eventually, Dassey requests that the court appoint a different public defender to represent him because, he says,  Kachinsky "thinks I'm guilty".

     You should be able to communicate with your attorney and ask questions. Your attorney should return your calls and keep you informed about case strategy. If you feel that your counsel is keeping you in the dark, it may be necessary to terminate your attorney's services and seek alternate legal representation.

     Making a Murderer opens our eyes to flaws in the legal system which particularly affect those with unequal access to legal resources. Regardless of whether I think Avery and Dassey are guilty, I do not think they received a fair trial and I do not think the Manitowoc Sheriff's Department's handling of their cases was proper. I hope that the documentary is the spark that lights the fire for a close examination of flaws in the system and paves the way for reform. In the meantime, people can take steps to protect themselves from falling through the "fault lines" in the legal system by keeping the above tips in mind.