By Jenny S. Kim, From Corporate Counsel

Have you noticed? Social media is everywhere. Facebook, Twitter, Snapchat, Instagram—the list goes on and on. People who use them seem willing to share anything and everything about themselves, with illustrations. As the prevalence and acceptability of social media increases, so too does its use, not only as a means of keeping in touch with friends and family members, but also as a tool to network with professional contacts and market professional skills. But this can (and does) result in some unintended consequences, as demonstrated in a recent court decision.
As the universe of one’s online “friends” inevitably expands to include coworkers, supervisors, clients and business prospects, the savvy business professional has quickly learned the dangers of sharing too much personal information via social media. We likely all know by now that a picture of you in your bathing suit holding an umbrella drink in each hand may not be the image you want to share with all of your social media contacts. What most people usually don’t worry about, however, are the statements and information shared on so-called professional social media sites, such as LinkedIn.
By the very nature of these types of sites, users feel comfortable that what is shared and posted in their profiles, such as professional bios and descriptions of past and current work responsibilities, is safe, even wise, to disclose and publicize. Some may even embellish their credentials or professional skills in order to raise their professional status or secure a new position. However, a court decision in Illinois that was issued in February gives us all a healthy reminder that users need to be very conscious and deliberate about any and all information shared via social media, even on professional social media sites. Once the information is “out there,” it can potentially be used against you in unexpected ways, as was the case in Federal Trade Commission, et. al. v. Advocate Health Care Network, et. al.
By way of background, in this case the FTC is seeking to prevent the defendants, two Chicago-area hospitals, from merging. In the run-up to filing suit against the defendants, the FTC accumulated highly confidential information from the defendants’ competitors, including strategic business plans, market and competitive assessments, forecasts and pricing lists. When the defendants sought copies of these materials from the FTC, the third-party competitors intervened to prevent disclosure, including to the defendants’ designated in-house counsel. In response, the defendants argued that access should be granted to their respective in-house counsel because, as explained in sworn declarations submitted by each attorney, neither designated in-house attorney is involved in executive level or competitive decision-making.
In order to confirm the veracity of the statements the in-house attorneys made in their declarations, counsel for the competitors did not seek to depose the attorneys or conduct any other, more traditional, forms of discovery. Rather, they turned to social media. As the court noted, the competitors’ lawyers “did what any careful contemporary lawyer would do – they turned to social media to see whether there was information that might bear on the assertions in the Declarations. And, lo and behold, the LinkedIn profiles of [the designated in-house attorneys] told a very different story than that in their Declaration.” Because their LinkedIn profiles “publicly boasted” that their work responsibilities include “development of strategy” in a variety of competitive areas, and “strategic and business planning,” the court found that, in conflict with the sworn statements made in their declarations, the in-house attorneys are indeed involved in business decisions, and, therefore, were not entitled access to the competitors’ highly confidential information. As the court noted, no one can dispute “the authenticity of these postings.”
Whether the descriptions of their work responsibilities in their profiles were accurate or not, the point here is that the court gave more weight to the attorneys’ LinkedIn postings than it did to their sworn statements. Let this serve as a reminder to social media users to be cautious about what you post and publicize, including on professional social media sites. A careful review of your LinkedIn profile can ensure that all posts about professional skills, credentials and experience are not only accurate, but also what you are comfortable being bound by someday in a court of law.
Jenny S. Kim is a partner in Neal, Gerber & Eisenberg’s general and commercial litigation practice group. She has extensive experience defending clients in a broad range of disputes and controversies, including national and statewide class actions, antitrust and unfair trade practices actions, and actions alleging conspiracy, misappropriation of trade secrets, fraud and breach of contract. In addition to her active litigation practice, she is co-chair of the firm’s diversity and inclusion committee.

For more on this story go to: http://www.corpcounsel.com/id=1202756610110/The-Potential-Pitfalls-of-Professional-Social-Media-Sites#ixzz47gdWl9dO