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Lawyers, social media evidence and discovery obligations

Stacked3This week's Daily Record column is entitled "Lawyers, social media evidence and discovery obligations."  My past Daily Record articles can be accessed here.

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Lawyers, social media evidence and discovery obligations

 

If you’re a litigator, you know as well as I do how important social media evidence has become in recent years. Social media sites are virtual treasure troves of useful data and obtaining access to that information can be vital to mounting a successful case.

That’s why so many lawyers are now routinely requesting access to social media accounts during litigation. The problem is that since this type of evidence is such new phenomenon, it’s often unclear what lawyers’ obligations are when it comes to preserving social media data or turning it over during the course of discovery.

Two recent cases are instructive in this regard. First, there’s the proposed advisory ethics opinion issued by the Florida Bar in January, Proposed Advisory Opinion 14-1. At issue in this case was whether lawyers can, prior to litigation being initiated, advise clients to “clean up” their social media pages.

First, the committee concluded that a lawyer may ethically advise clients to change the privacy settings on their social media accounts to the highest levels of privacy, making it so that the pages are no longer publicly accessible.

The committee also reached another conclusion that has caused considerable debate in some circles, holding that it is ethical for a lawyer to advise clients to delete data from social media accounts as long as the lawyer retains copies of information that may be relevant to a future proceeding: “(A)lawyer may advise the client pre-litigation to remove information from a social media page, regardless of its relevance to a reasonably foreseeable proceeding, as long as the removal does not violate any substantive law regarding preservation and/or spoliation of evidence. The committee is of the opinion that if the lawyer does so, an appropriate record of the social media information or data must be preserved if the information or data is known by the lawyer or reasonably should be known by the lawyer to be relevant to the reasonably foreseeable proceeding.”

Since this is only an advisory opinion, there’s a chance that this holding may be revised in the near future, so keep an eye out for the final opinion — especially given how much criticism has been mounted against the portion of the decision relating to advising clients to remove social media postings.

In another case, a federal court judge in the Eastern District of Louisiana raised concerns about an attorney’s perceived obfuscation in relation to a discovery request for his client’s social media account information. At issue in Crowe v. Marquette Transp. Co. Gulf-Inland, LLC, 2015 WL 254633 (E.D. La. Jan. 20, 2015) was whether the plaintiff, who alleged that he injured his knee while at work, had adequately complied with a discovery demand.

The defendant asked for “an unredacted, unedited digital copy of your entire Facebook page from the onset of your employment with Marquette until present.” In response to the demand, he replied that he “does not presently have a Facebook account.” It was later discovered that he did have a Facebook account, but that it had been deactivated just days after service of the defendant’s demands for discovery.

The defense then brought a motion to compel, which resulted in the order cited above. In the order, the judge chastised the plaintiff for his less than truthful response to the request for access to his Facebook account: “(T)he Court is troubled by Crowe’s refusal to produce any responsive documents on the basis of the statement that he did not ‘presently have a Facebook account.’ The records indicate that Crowe did not delete his account but deactivated it. It is readily apparent to any user who navigates to the page instructing how to deactivate an account that the two actions are different … Crowe’s efforts to avoid producing this material have unnecessarily delayed these proceedings and have wasted the time of his opponent and this Court.”

The court then ordered that he provide the defendant with his password and full access to the Facebook account along with printouts of 4,000 pages of his Facebook account data.
So the lesson to be learned from these recent examples of how these issues are being addressed by both courts and ethics committees is that honesty is the best policy. Social media interactions are now a regular part of our day-to-day lives and this information is oftentimes relevant to litigation. Instead of treating digital evidence differently than you would other types, err on the side of caution, preserve all data and be forthright in your discovery response, lest you run the risk of spoliation sanctions or worse.

 

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also a GigaOM Pro Analyst and is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at niki@mycase.com.