Tuesday, July 26, 2022

Posting about litigation (actual or potential) is a terrible idea

Until yesterday, Erin Overbey worked as an editor at The New Yorker. Shortly after her termination, Overbey took to Twitter to write about her termination. Across 35 tweets, she accuses the magazine of retaliating against her because of she had previously raised concerns over its lack of equity and inclusivity. 

While the allegations are interesting, I instead want to focus today's lens on the idea of tweeting about a matter in litigation, or reasonably expected to head in that direction. What I'm about to say holds true for employees and employers.

Don't do it!

Clients engage litigators to poke holes in the stories of other litigants. We're good at it. It's what we're paid for. We find those holes, expand them into inconsistencies, and twist those inconsistencies into partial truths and flat out lies. Lies cause a loss of one's credibility, and once you lose your credibility with a judge or jury, it's game over. Further, if what you're tweeting (or otherwise posting online) ends up being untrue, it could create a basis for a counterclaim (e.g., tortious interference with business relations or customers).

The same holds true for employers. If you tweet about an employee's employment or termination from employment in response to the employee's allegations, you risk creating additional claims. For example, in certain circumstances you might expose an employee's confidential medical information, or you might defame the employee by revealing information about the employee's job performance or your reason for termination. It also just doesn't look good to a jury if a company is trying to crush an employee via social media. 

Our job as your lawyer is to take the facts as presented to tell your story in the best light possible for you. Don't make our job more difficult by creating online fires for us to put out. We prefer to litigate in court. Please don't try to do our jobs for us in the court of public opinion.