In April 2011, a jury awarded Shana Maron $86,000, after finding that she was paid less than her former male colleagues in Virginia Tech’s Office of University Development. In June, U.S. District Court Judge James Turk threw out the verdict and ordered a new trial, reports Roanoke.com.
The plaintiff was not happy about the judge’s decision. So she did exactly what we would expect–she posted about it on Facebook, writing, “What’s the law really worth when you can make it up as you go?” and “Turk is a Turkey.” She later added, “The jury spoke, Tech lost, Turk is a biased bully, and I will still prevail.”
Sure enough, one of Maron’s Facebook friends reported the posts to Virginia Tech’s lawyers. And, sure enough, they sought a court order seeking to compel Maron to turn over all of her Facebook postings about the case.
Why would they want to know what the plaintiff had to say during the first trial? Maybe because they thought there could be evidence that could serve as the basis for a mistrial. Or, more likely, maybe the hope to find comments she made that could be used to impeach her during the second trial.
The judge, though, didn’t buy it. He denied Virginia Tech’s motion on October 20, 2011, ruling that the Facebook posts (assuming they do exist), were not material to Maron’s Equal Pay Act claim.
So, what do we learn from this case? First, for individuals who are parties to a suit (and their counsel), silence is golden. And silence includes Facebook silence. I’ve had several interesting discussions with other attorneys about whether lawyers should monitor their clients’ online activities during litigation. And several plaintiffs’ lawyers I know have amended their retention agreements to reflect a promise by their clients that they will refrain from posting anything about the case in any online forum, including Facebook. Second, employers’ lawyers should consider whether they should monitor plaintiffs’ online activities throughout litigation.