LinkedIn Connection Requests Don’t Violate Insurance Salesman’s Noncompete – IL Court

The First District recently considered whether an insurance salesman’s generic LinkedIn invites to some former co-workers violated non-compete provisions in his employment contract.

The plaintiff in Bankers Life v. American Senior Benefits employed the defendant for over a decade as a sales manager.  During his employment, plaintiff signed an employment agreement that contained a 24-month noncompete term that covered a specific geographic area (Rhode Island).  Plaintiff sued when it learned the defendant sent some LinkedIn connection requests to some former colleagues.

The court granted the defendant’s summary judgment motion on the basis that the plaintiff failed to offer any evidence that the defendant breached the noncompete by trying to induce three of plaintiff’s employees to join defendant’s new agency.  Plaintiff appealed.

Plaintiff argued that the LinkedIn requests were veiled, if not blatant, attempts to circumvent the noncompete by inviting former co-workers to join a competitor.

The First District affirmed summary judgment for the defendant.  For support, it looked to cases in other jurisdictions that considered if social media overtures can violate employee restrictive covenants.  The Court noted that a majority of these cases hold that passive social media postings (LinkedIn and Facebook, mainly) don’t go far enough to violate a noncompete.

The cases that have found that social media breached noncompete obligations involve clear statements of solicitation by the departed employee where he directly tries to sign up a former client or colleague. Since all the defendant did in this case was send generic LinkedIn messages, they didn’t rise to the level of an actionable solicitation.

The Court also rejected the plaintiff’s argument that summary judgment was premature and that the plaintiff should have the opportunity to take more discovery on this issue.  Illinois Rule 191 allows a summary judgment opponent to stave off judgment while it takes written and oral discovery to assemble evidence to oppose the motion.  But the plaintiff must show a “minimum level of information” showing a defendant is possibly liable before initiating a lawsuit or making a defendant submit to discovery requests.

Since the plaintiff failed to produce any evidence the defendant solicited any of plaintiff’s employees in the prohibited Rhode Island area, summary judgment for the defendant was proper.

Afterwords:

LinkedIn generic invites that don’t specifically ask someone to sever his/her relationship with current employer don’t go far enough to constitute improper solicitation;

Summary judgment is “put up or shut up moment;” the party opposing summary judgment must offer evidence that raises a question of material fact that can only be decided after a trial on the merits.

 

Multi-Year Request for Facebook Activity Too Broad – Illinois Federal Court


Ye v. Veissman (1:14-cv-01531)(Memorandum Opinion and Order) examines the scope of Facebook page discovery requests in the context of a wrongful death suit.

There, the plaintiff, whose daughter was killed in a freak traffic accident as she walked on a downtown Chicago street, sued the responsible trucking company and driver for wrongful death and tried to recover for mental anguish resulting from the accident. 

To probe the depths of the plaintiff’s claimed mental malaise, the defendants sought discovery of the decedent’s Facebook communications going back seven years before the accident.  The plaintiff refused on the grounds of relevance and overbreadth (“it’s a fishing expedition”) and the defendants moved to compel the material.

Denying the defendants’ motion, the Court answered important questions on when social media evidence is relevant to a mental distress claim and the case starkly illustrates the importance of narrowly tailoring discovery requests in this computer-drenched society.

The Federal Discovery Rules and Facebook Data

Federal Rule of Civil Procedure 26(b)(1) allows discovery into any nonprivileged matter relevant to a party’s claim or defense that is proportional to the needs of the case.

Facebook discovery requests can present thorny logistical challenges since  the amount of discoverable information is voluminous, data is retained for a long time and the number of people with whom a given Facebook subscriber communicates is potentially limitless.

In spite of these difficulties, social media evidence is still discoverable so long as the requested information meets the test of relevance.  The Illinois and Federal rules of evidence define relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”  See Illinois Evidence Rule 401.

The Ye court noted that while “everything posted on social media can reflect a person’s emotional state of mind” at any given snapshot of time, a plaintiff’s injection of his state of mind does not give a requesting party with a “generalized right to rummage at will through [social media] information.”

Seven Years of Facebook Data = Too Broad

Finding the defendants’ discovery requests too broad, the Court noted that the amended discovery rules, effective since December 2015, limit the scope of relevant evidence and required that discovery be proportional to the needs of a given case.

The court allowed that since plaintiff’s damage claims were nebulous by nature – they included mental suffering, grief, sorrow, loss of society, companionship, and consortium – some social media discovery was clearly permitted (and relevant).  This was because the discovery requests sought to shed light on the plaintiff’s mental state and his damages claims.

The court found that “[c]ertainly some social media content during the time period prior to death will be relevant”, this didn’t give the defendants a green light to request unlimited Facebook information.  The court found the seven-year request overbroad as it wasn’t confined to a narrower pre-accident time span.

The extensive request for Facebook data also exceeded relevance restrictions since defendants sought communications between the decedent and third parties who had nothing to do with the accident or the lawsuit.  According to the court, if the discovery requests were pruned to only include communications between the decedent and her immediate family, the requests would likely be focused enough to meet the discovery rules’ relevance and proportionality tests.

However, as the requests currently stood, the minimal relevance of the decedent’s Facebook communications was outweighed by the burden to the plaintiff in producing the data.

To support its findings, the Court cited liberally from recent Federal cases in Indiana and California that found Facebook discovery requests spanning five years (the Indiana case) and seven years (Cal.) too broad under Rule 26.

Afterwords:

This opinion is a good example of a court grappling with the discoverability of social media evidence in a case where a plaintiff’s mental state is clearly at issue.  Like so often, the discovery decision distills to a balancing test: the Court weighs the possible relevance of the requested information against the time, money and energy burden to the plaintiff in producing the information.

While some latitude is allowed in discovery requests, it’s clear from this case and others like it, that discovery requests have limits.  Where the burden of responding to Facebook discovery outweighs the possible relevance of the requests, a court will order the requesting party to constrict its requests.

 

 

 

Admissibility of Internet Photos under Illinois Rules of Evidence

 

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In re Marriage of Perry, 2012 IL App. (1st) 113054 examines the foundation requirements to admit Internet photos into evidence at trial.  The respondent husband downloaded what he claimed were photos of his wife from an Internet escort site and tried to use the provocative pictures against her in a custody fight.

In finding that the husband laid a proper foundation for the flash drive photos, the Court first applied Illinois Evidence Rule 901 which sets forth a two-part test for authenticity: (1) a witness must testify that a matter is what it is claimed to be and (2) he must offer evidence that describes a process or system used to produce a result and which shows that the process or system produces an accurate result is sufficient for authentication.  Ill. R. Evid. 901(b)(1), (9).

Under Evidence Rule 1001, the Court noted that a duplicate is defined as [paraphrasing] a counterpart produced by means of photography, or by other equivalent techniques  that accurately reproduce the original.  A duplicate is admissible to the same extent as the original unless there is a genuine issue concerning the original’s authenticity or if it would be unfair to admit the duplicate in lieu of the original.  Perry, ¶ 47; Ill. R. Evid. 1001(4), 1003.  In Illinois, photographs are admissible if they are identified by a witness who has knowledge of the subject matter depicted in the photographs and the witness testifies that the photos are a fair and accurate representation of the subject matter at the relevant timePerry, ¶ 47.  Expert testimony is not required to provide a foundation for a photograph if the person testifying as to the photo’s contents has personal knowledgePerry, ¶ 48.

Applying these rules, the Court held that the husband laid a sufficient foundation that the photos in question depicted his wife. But in finding that the husband failed to lay a foundation that the photos were specifically from the “Chix Escorts” Web site, the Court noted that on-line evidence is naturally suspect since anyone can create phony social media accounts.  Perry, ¶ 50.  Still though, the Court noted a growing national trend to allow screenshots into evidence based on witness authentication by live testimony or affidavit.”  Perry, ¶ 51.

The First District ruled that there was improper authentication evidence that the photos were from the escort site, noting that only one photo bore the “Chix Escorts” logo.  In addition, the wife challenged the photo’s veracity by testifying that the flash drive photos were old photos she sent her husband and that were stored on his cell phone.  The court further found that none of the photos consisted of screenshots or contained the Internet address on them.  Because photos can be digitally manipulated and the wife offered testimony that the photos originated not from the Net but from her husband’s own cell phone, the Court concluded that the husband failed to lay a proper foundation that the photos originated from the “Chix Escorts” site.  Perry, ¶ 53.

Even so, the Court held that the trial court’s admission of the photos as originating from the “Chix Escorts” escort site was harmless error. That’s because there was other evidence that the wife was working as an escort and the court did not base its custody decision  on what escort agency the wife happened to be working for.  Id., ¶ 54.

 The take-away: the Perry case is a good primer on the evidence rules that dictate photograph admissibility at trial – especially in the modern-day Web context.  The court liberally applied the Illinois evidence rules’ authentication requirements for downloaded Internet content. 

From this case, it seems clear that “screenshot” evidence can be powerful – especially as an impeachment tool.  If you can show that the challenged photograph is more likely than not a true screenshot, which bears some distinctive marks such as the domain name, the date or other evidence (such as the court itself witnessing the site from its own computer – see Perry, ¶ 51) which tends to show that the photo was in fact printed from a Web site, the Court will likely allow it in.  Obviously, the proponent of the evidence will have to first establish the photo’s relevance.