Legal Newsline

Friday, December 13, 2019

Executives beware: Social media posts will make it into depositions


By John Breslin | Jul 3, 2018


CHICAGO (Legal Newsline) – As the country ponders if, or when, the most powerful chief executive in the U.S. will find the details of his tweets fired back at him in deposition hearings, business leaders are being warned over their own social media sense.

At a recent legal conference titled "Game-Changing Complex Litigation Developments," organized by HarrisMartin, one of the round tables centered on deposing chief executive officers.

And the talk turned at one point to the number of chief executives with Twitter handles, with one of the panelists observing how people may be "shocked by what you see on these Twitter accounts."

Panel moderator Jim Wren, professor of law at Baylor University in Waco, Texas, agrees that Twitter and other social media sites can be goldmines when researching and preparing for taking the depositions of chief executives and others.

"Information put out in social media, if relevant, will find its way into the deposing of a witness," Wren told Legal Newsline. "It has been happening for quite some time...but is playing an increasing part."

In one high-profile case, Netflix CEO Reed Hastings posted on his Facebook page viewing figures, and boasted about how better these would be with the release of forthcoming series.

The U.S. Securities and Exchange Commission (SEC) issued a notice, arguing that both Netflix and Hastings were selectively disclosing information that should have gone on the company's 10K form. They were later cleared but the SEC warned investors must know ahead of time that such information will be posted.

Hastings remains on Facebook, and with more than 200,000 followers, is the second most-popular CEO on the platform, behind Mark Zuckerberg, who has 114 million.

"It is used to a significant degree by both sides in litigation," Wren said. "(You are) taking the words and prior statements, and if it is contrary to what they are now saying, it is free to be used."

In his law classes, Wren "absolutely" teaches his students that they better be checking social media as it is potentially a treasure trove of information, and not only on opponents but also their own clients.

And what could turn out to a significant deposition of a chief executive is that of President Donald Trump.

"Well, I do not know whether that is going to happen, but I do think his lawyers do not want it to happen," Wren said.

While warnings are being issued to all chief executives to be careful on social media, it does appear many of those heading Fortune 500 companies are staying away from having a presence, with notable exceptions.

DOMO, a computer software company that specializes in business intelligence, and CEO magazine, partnered to investigate how many top company chief executives use social media.

And the latest study published last year revealed that the majority of CEOs do not have any accounts of the six major social networks researchers looked at - Facebook, Twitter, LinkedIn, Google Plus, Instagram and YouTube.

The majority of those who do have an account are present on only one. LinkedIn, not surprisingly, was the most popular, with 36 percent, or 181, of the chief executives signed up.

BlackRock CEO Larry Fink has 536,000 followers on the career networking site, ahead of JPMorgan Chase's Jamie Dimon with 498,000. 

Only 40 were on Facebook and 36 on Twitter, down on each from the previous year. Only 25 were active on Twitter, with the most popular being Apple's Tim Cook with nearly 11 million followers.

The results of the research reveal that, following steady increases in the earlier years of social media through approximately 2015, the numbers of top business leaders embracing social media is now declining. 

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