Law 360: David Barnard on Searching for Social Media Evidence


I was reading an email on new local case filings, and a sexual harassment case jumped out at me. The plaintiff’s allegations about her former employer’s comments were detailed, lurid and eye catching. It was the sort of thing to make you pause and mutter, “oh my.”

The plaintiff’s name was unusual. A click of the mouse a few key strokes and here is the plaintiff’s Facebook picture staring back at me. Her picture is stricking. Her arm is around a sunburned, shirtless guy, whose squinty eyes and open mouthed smile say he should surrender his car keys. She is wearing a tiny bikini.

Based upon the picture, at least one of the alleged harassment comments was subjectively accurate. However, unlike in defamation cases, the truth is not a defense when it comes to lewd comments in the workplace. Is the picture important? Should the picture matter to a jury? The answer is that whether it ought to or not, if a jury sees that picture, it probably will matter. Read more ...