Facebook.  MySpace.  Instagram.  Twitter.  Pinterest.  LinkedIn.  Snapchat.  Social media applications are dynamic, and the app that is hot one day can easily be out of favor the next.  Parents trying to keep up with their teen-aged children know that better than anyone, and labor and employment lawyers are not far behind.  Good luck to the judges . . . . 

A case pending in the United States District Court for the Eastern District of Virginia makes the point. In Brown v Farmville Cinema Operations, LLC, (June 18, 2014, Spencer, J), the Court negotiated its way through the TextMe smartphone app as it considered an employer-defendant's request that the plaintiff be ordered to cease and desist from contacting witnesses and attempting to prevent them from testifying in the case. The plaintiff is asserting race discrimination and retaliation claims under the Civil Rights Act of 1866, 42 U.S.C. § 1981.

In the course of the case, the plaintiff's former supervisor informed counsel for the employer that she had received over a dozen phone calls and text messages of a strange or threatening nature. She then discovered that the text messages were sent from a phone number automatically generated by the “TextMe” smartphone application. When the former supervisor (and witness) used the TextMe application to send a message back to the phone number, TextMe displayed the username “msquilla4348968.”  The Court noted that the TextMe application reportedly generates usernames based on the primary email address stored in the user’s smartphone.  The defendant claimed that the text messages received by the plaintiff's former supervisor came from a TextMe account registered on a smartphone linked to the plaintiff’s personal email address—msquilla43@[domain name omitted].  The plaintiff denied contacting the supervisor and claimed that the supervisor had "a history of sending fake e-mails."  

The Court accepted that there was at least a colorable argument that the plaintiff contacted her former supervisor and harassed her via text message.  It found that the plaintiff's email -- msquilla434@[domain name omitted] -- and the name of the TextMe account at issue—msquilla 434969—were eerily similar.  The Court held, however, that there was no guarantee that another person could not have established a similar email address and formulated the TextMe account name at issue. For example, it appeared possible that another person could create a “msquilla43” email address through Comcast, AOL, or any other email service provider and use it to generate the TextMe account name of msquilla 434969.  Because the Court had only affidavits from the former supervisor and the plaintiff, without any outside evidence other than the text messages (e.g., phone records supporting the supervisor's story), it held that the employer had not established good cause for a protective order against the plaintiff. 

While the Court denied the employer's motion, it was certain enough in its understanding of the TextMe app and other facts of the matter that it warned that "any indication of such conduct in the future will not be tolerated."