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Plan Fiduciaries Should Be Aware of Public and Private Social Media Activities

Posted by Corey F. Schechter | Sep 13, 2018

In an ongoing ERISA class action lawsuit, an Indiana court found that Facebook messages were discoverable, despite a nondisocoverable order applying to instant messages. Most users treat online messaging differently than drafting an email; however, the court may consider messages the same as email when evaluating whether the information was discoverable.

In Bell v. Pension Committee of ATH Holding Co., a number of Anthem, Inc. employees filed a lawsuit against ATH Holding Company LLC, as plan participants of the company's 401(k) benefit plan. The group of plan participants alleged fiduciary violations of ATH, the pension committee, and board of directors under the Employee Retirement Income Security Act (ERISA).

The participants claimed, in part, ATH breached their fiduciary duties by paying excessive management and administration fees, which resulted in losses of tens of millions of dollars.

ATH sought to compel disclosure of private Facebook messages between two of the named plaintiffs, which one of the plaintiffs had mentioned during deposition testimony. The plaintiffs claimed the instant message communications were nondiscoverable as part of a stipulated electronically stored information (ESI) discovery order. However, ATH claimed the messages were more akin to emails and not subject to the order.

The nondiscoverable ESI applied to system logs, network activity logs, voicemails, and “instant messaging communications.” However, the federal magistrate judge ultimately found that the Facebook messages were similar to emails, based, in part, on the users' privacy expectations. Additionally, the ESI did not define “instant messaging communications,” and it was unclear whether the Facebook messages were included.

However, even if the messages were to be included as nondiscoverable, there was an exception for relevant evidence when the need for the evidence justifies the burden of preservation and retrieval. As a result, the messages were discoverable.

This particular order applied to plan participants in an ERISA case. However, there is an important takeaway for plan fiduciaries and the use of online messaging and social media: Online messages and instant messages may be discoverable in ERISA litigation and treated the same as emails.

Plan fiduciaries may not use social media platforms in a professional capacity. However, there are a number of online messaging tools that companies use to communicate throughout the day that are separate from company email. This may include platforms like Slack, Yammer, or Office Chat.

When drafting an email, fiduciaries may put more thought into their message, who may see the message, and how their words could be taken out of context. However, sending a quick message to another person through an online message may be treated like casual conversation. Especially when the messages are expected to be kept private. However, these messages can still be treated like emails in litigation discovery. So regardless of whether you are a plaintiff or defendant in an ERISA action, always think twice about what you commit to writing in otherwise casual conversation.

If you have any questions about ERISA litigation and what types of communications can be compelled by the other party, the law firm of Butterfield Schechter LLP is here to help. We are San Diego County's largest law firm focusing its law practice on employee benefits law. Contact our office today with any questions on how we can help you and your business succeed.

About the Author

Corey F. Schechter

Corey Schechter practices in the areas of Employee Benefits, Employee Stock Ownership Plans, Pension and Profit Sharing Plans, ERISA, ERISA Litigation, Business Law, Qualified Domestic Relations Orders (QDROs), and Employment and Labor Law.


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