This article was primarily authored by Maryam H. Karnib, a law student at Wayne State University and a 2013 summer associate at Honigman Miller Schwartz and Cohn LLP.
Social media websites are used now more than ever for both personal and professional reasons. LinkedIn is an online social media professional networking website that many professionals use to display their qualities and help connect them with other professionals. Although LinkedIn can expand an individual’s professional network, more and more attorneys are using LinkedIn information as evidence during litigation.
Although LinkedIn has been used as evidence for various claims, most courts hold that it is insufficient. Additionally, some courts have held that LinkedIn evidence is inadmissible hearsay. Therefore, parties must be aware that simply providing a court with LinkedIn evidence may not be enough to prove their claim. On the other hand, when it comes to certain aspects of a case, such as proving a witness’ credibility or lack thereof or an element of a claim, other courts have highlighted LinkedIn evidence as noteworthy. Accordingly, it is important to know how LinkedIn evidence has been used in litigation and how courts treat such evidence.
A. LinkedIn Evidence is Likely Insufficient to Support Procedural Claims such as Personal Jurisdiction and Proper Service.
In VBConervsions LLC v. Now Solutions, Inc. (C.D. Cal. 2013), the court held that the LinkedIn evidence used to show personal jurisdiction was inadmissible hearsay. Plaintiff VBConversions LLC (“VBC”), a California software development company, originally filed an action against Defendants Now Solutions, Inc. (“Now Solutions”), Vertical Computer Systems, Inc. (“VCS”), and Vasconcelos in the Central District Court of California alleging various copyright infringement claims. VBC asserted that Vasconelos, who is allegedly Now Solutions’ and VCS’s employee, unlawfully hacked into Plaintiff’s software program. Because the Defendants had no ties to California, VCS and Now Solutions motioned to dismiss the case for lack of personal jurisdiction. However, VBC argued that because the court had personal jurisdiction over Vasconcelos, it also had personal jurisdiction over the remaining Defendants as Vasconcelos’s employers. VBC attempted to show Defendants’ employer-employee relationship by submitting a copy of Vasconcelos’s purported resume posted on LinkedIn. The court held that the LinkedIn evidence was inadmissible hearsay and that it did not fall under any recognized exception.
Conversely, the court in Ambriz Trading Corp. v. URALSIB Fin. Corp. (S.D.N.Y. 2011) admitted Plaintiffs’ LinkedIn evidence. However, the court held that the evidence was too conclusory to show that service was proper.Defendants filed a motion to dismiss Plaintiffs’ complaint alleging that, among other things, Plaintiffs did not make “a reasonable effort to effectuate service of process.” Defendants were located and did business outside the United States. However, Plaintiffs served Defendants by hand delivering copies of the summons and complaint to Defendants’ affiliate in New York. Defendants argued that the plaintiffs did not properly serve them because none of the defendants maintained a presence in their affiliate’s New York office. Plaintiffs submitted two LinkedIn pages to support their position that Defendants had a presence in New York. However, the court noted that “[the LinkedIn pages] merely represent[ed] two individuals’ posting that they work for [an affiliate].” Accordingly, it held that the LinkedIn pages were vague and “far too conclusory” to establish Plaintiffs’ position. Similar to Plaintiffs’ use of LinkedIn evidence to support procedural claims, a party may use LinkedIn evidence to show that a witness is a qualified expert.
B. LinkedIn Evidence May be Insufficient to Establish that a Witness is a Qualified Expert.
The court in Singh v. Bank of Am. (N.J. Super. Ct. App. Div. 2011) affirmed the trial’s court decision that LinkedIn evidence was insufficient to establish an expert’s education, experience, and background. Plaintiff Singh filed an action against Defendant Bank of America for damaging his credit ratings and causing him to lose profitable investments. In order to show damages, Singh gave Bank of America “a report from his proposed expert on liability and damages, Himanshu Maru.” To establish Maru’s expertise, Singh provided a print-out copy of Maru’s LinkedIn page instead of a CV. The trial court held that the LinkedIn page was insufficient to prove an expert witness’s background, education, and experience. Accordingly, the appellate court affirmed the trial court’s evidential ruling because there was no abuse of discretion. Unlike Singh’s finding that LinkedIn evidence was insufficient to qualify an expert witness, LinkedIn evidence may be sufficient to show a witness’s credibility.
C. LinkedIn Evidence May be Sufficient to Show a Witness’s Credibility.
In Blayde v. Harrah’s Entertainment (W.D. Tenn. 2010), the court considered LinkedIn evidence when it determined a witness’s credibility. Plaintiff Blayde filed an age discrimination claim against Defendants under the Age Discrimination in Employment Act (“ADEA”). In order to prove age discrimination under the ADEA, Blayde had to show that Defendants were Plaintiff’s employers and that age was the determining factor of the termination. Defendants’ evidence supporting their reason for termination consisted primarily of Hirsch’s, Blayde’s Supervisor, testimony. But the court held that Hirsh lacked credibility because his testimony denying that he worked for Defendants was inconsistent with his LinkedIn page. Hirsch’s only explanation for his inconsistency was that it was not his page. The court characterized Hirsch’s assertion as “incredible,” stating that he had already confirmed all of the information on the LinkedIn page as correct. Although LinkedIn evidence may be sufficient to show a witness’s credibility or lack thereof, such evidence is probably inadequate to refute sworn statements.
D. LinkedIn Evidence is Likely Insufficient to Contradict Sworn Statements.
In Shannon v. GfK Custom Research, LLC (E.D. Mo. 2013),Plaintiff Terry Shannon filed a lawsuit against Defendant for unlawful employment discrimination and retaliation in violation of the Missouri Human Rights Act. GfK Custom Research LLC (“GfK”) and other Defendants moved to remove the case to the Eastern District of Missouri Federal Court. Defendants submitted Eleonore Muller’s affidavit to support their assertion that GfK Custom Research North America (“Gfk North America”), a named Defendant, never existed as a legal entity. Thereafter, Shannon filed a motion to strike the sworn affidavit. To refute Muller’s contention, Shannon provided a LinkedIn page that referred to Gfk North America as an employer and GfK North America’s LinkedIn page that provided information about the fictitious entity. The court held that the LinkedIn evidence did not refute the affidavit. It noted that “merely copying some pages from a publicly available website used for employment and networking purposes does not establish that GfK North America exists as a legal, suable entity.” Further, the court noted that LinkedIn did not reliably show that Muller lacked personal knowledge foundation. Therefore, the court denied Plaintiff’s motion to strike the sworn affidavit.
Similarly, the courts in Bittinger v. Wells Fargo Bank NA (S.D. Tex. 2011) and Rundquist v. Vapiano (D.D.C. Sep. 30, 2011) held that a LinkedIn page was insufficient evidence to refute an affidavit. Bittinger noted that the plaintiff made a “last-ditch effort” to get the court to ignore the defendant’s affidavit. In that case, the plaintiff referred to information from the defendant’s LinkedIn page that was contrary to the defendant’s affidavit. The court stated that even if the plaintiff submitted the actual LinkedIn page, the court had no reason to trust its accuracy. Likewise, Rundquist found that LinkedIn evidence was “insufficient to overcome the defendants’ sworn statements . . . .” Accordingly, courts have consistently found LinkedIn evidence less reliable than sworn statements. However, when a party uses such evidence to establish an element of a claim, courts have differing views.
E. Courts Vary on Whether LinkedIn Evidence is Sufficient to Show an Element of a Claim.
The court in Automotive Support Group v. Hightower (E.D. Mich. 2011) held that the LinkedIn evidence used to show an alleged breach was inadmissible hearsay. Plaintiff Automotive Support Group LLC (“ASG”) sued former employee McGowan alleging that he breached his employment contract by violating a non-compete provision. To prove McGowan’s alleged breach, ASG claimed that McGowan helped create a customer’s LinkedIn account and that he was listed as the account’s “owner.” McGowan indisputably created the LinkedIn account; he admitted that he entered the information into the online form. However, the court held that “simply . . . entering information to create a LinkedIn account does not violate the terms of [an] employment agreement.” There was no evidence showing that McGowan used or disclosed ASG’s confidential information when he made the account. Further, the court noted that ASG relied on its “unsubstantiated suspicions and inadmissible hearsay” to show McGowan’s wrongdoing.
Unlike Automotive Support Group,the court in Westley v. Orlaro (N.D. Cal. 2013) admitted Plaintiffs’ LinkedIn evidence. The court ultimately held that the evidence did not establish an element of the alleged wrongful act. Curtis Westley, among others, filed a securities fraud class action lawsuit against Oclaro, Inc. (“Oclaro”) and two of its officers, Couder and Turin. Plaintiffs’ submitted both officers’ LinkedIn pages to show that the officers’ participated in the fraud as hands-on managers. Couder’s LinkedIn page claimed that he was an Active Chairman and CEO of Oclaro. Similarly, Turin’s LinkedIn page claimed that he introduced Oclaro to the investor community and raised $75 million for the company. The court found no evidence supported Plaintiffs’ claim that Turin was a hands-on manager. Further, the court stated that Couder’s LinkedIn page was not “particularly strong” in showing he was a hands-on manager. Therefore, the court granted Defendants’ motion to dismiss the complaint because the LinkedIn page did not establish the required mental state.
In addition to information displayed on LinkedIn, one court has considered LinkedIn activity such as a request to join another’s LinkedIn network as evidence. In General Patent Corp. v. Wi-Lan, Inc. (S.D.N.Y. 2011), the court stated that evidence of a LinkedIn request was “noteworthy” in showing Defendant’s breach. Plaintiff General Patent Corporation (“GPC”) applied for a preliminary injunction against Wi-Lan, Inc. (“Wi-Lan”) for, among other things, violating their non-solicitation agreement. In April 2010, the parties signed a two year non-solicitation agreement. However, in June 2010, Wi-Lan began discussing possible employment opportunities with Lerner, a GPC employee. The court noted that Wi-Lan used LinkedIn to contact Lerner in June, shortly after cancelling the proposed transactions. Further, the court stated that it was “noteworthy,” but not dispositive, that Wi-Lan executives “requested to join Lerner’s ‘LinkedIn’ network.” Unlike other courts that focus on the information on the LinkedIn page, the Wi-Lan court took note of a person’s activity on LinkedIn, particularly a request to join a network. Accordingly, a company or individual must be cautious about information displayed on LinkedIn and activity on LinkedIn that may be used against them.
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Most courts have held that LinkedIn evidence is insufficient to support or refute a litigation claim. At most, courts have held LinkedIn evidence to be noteworthy. While LinkedIn evidence does not appear to be a big threat during litigation, courts may take it into consideration. Therefore, although LinkedIn may serve as a great way to expand one’s professional network, companies and individuals must be aware that a party may try to use information or activity on LinkedIn as evidence during litigation.
