Practice Points with Mark Scruggs: What Should I Tell My Client about Social Media?

Social media, like all electronically stored information (ESI), is less permanent (or so we think) than documents or other tangible evidence. The perceived impermanence of ESI can lead to intentional or unintentional deletion and possible claims of spoliation of evidence. Such claims can have a detrimental effect on your client’s case. The question then is how can you advise your client concerning what can and what cannot be done with his or her social media postings when litigation is anticipated or pending?

2014 Formal Ethics Opinion 5 entitled “Advising a Civil Litigation Client about Social Media” gives lawyers guidance on this important topic.

Learn the basics.

We cannot advise our clients about the proper use of social media unless we have a basic understanding of how the most widely used social media platforms work. What’s public, what’s private, how to set or adjust privacy settings, and perhaps most important how to preserve postings if they are deleted from social media.  The duties of competence and diligence (N.C. Rules of Professional Conduct Rule 1.1 and 1.3) require the lawyer to have a basic understanding of social media so as to advise his or her client consistent with the needs of the case.

Discuss (and perhaps review) the client’s social media.

It is hard to imagine a case in which social media will not be mined by the other side for useful evidence. The client’s credibility and truthfulness are always at issue, and social media is fertile ground for uncovering evidence to attack or undermine the client’s veracity and ultimate credibility.  Competent representation includes knowledge of and advice concerning social media. How it might be relevant and material to the client’s case, including the client’s credibility. The lawyer should review the client’s social media postings (both public and private) with the client to determine which, if any, postings are material and relevant to the pending matter and must be preserved, if the advice is to remove those social media postings.

Tread carefully with existing social media posts.

The lawyer must take care to avoid a charge of spoliation of evidence. “The obligation to preserve evidence even arises prior to the filing of a complaint where a party is on notice that litigation is likely to commence.” McLain v. Taco Bell Corp., 137 N.C. App. 179 (2000) (citing Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68 (S.D.N.Y. 1991). As long as removing postings does not constitute spoliation and is not otherwise illegal or in violation of a court order, the lawyer may instruct the client to remove existing postings on social media. To avoid a claim of spoliation, the lawyer should advise the client to preserve the postings by printing the material, or saving the material to a memory stick, compact disc, DVD, or other technology used to save documents, audio, and video. But simply advising the client to preserve the postings is probably not enough. The lawyer should take ownership of the preservation process. Having simply advised the client to preserve the evidence may be of little comfort when relevant and material postings are removed and not preserved, resulting in a claim of spoliation and a possible adverse inference jury instruction. The lawyer should take possession of the material for purposes of preserving it.  After all, the lawyer will be the object of the court’s ire if relevant and material postings have been removed from social media and not preserved.

Advise client to refrain from future social media postings.

A lawyer may (and probably should) advise the client to refrain from any further social media posts that may be prejudicial to the client’s legal matter.  Since one cannot be sure what might be of use to the opposing party, the best advice is probably to refrain from any further social media posts at all until the legal matter is concluded.

Advise the client concerning security and privacy settings.

A lawyer may (and probably should) advise the client to change the security and privacy settings on social media to the highest level of restricted access, as long as such advice is not a violation of law or court order.

What’s the worst that can happen if you do not do these things?

If you fail to advise your client correctly, or if your client fails to correctly carry out your correct advice, what’s the worst that could happen? In Allied Concrete Co. v. Lester, 285 Va. 295 (Va. 2013), a case in which Lester sought damages for the wrongful death of his wife, Lester’s attorney, through his paralegal, instructed the client to “clean up” his Facebook page to remove certain photographs, including one that depicted Lester holding a beer can while wearing a T-shirt printed with “I <<heart>> hot moms.” Lester then deleted a number of photographs from his page. The deleted photographs were ultimately produced, and Lester prevailed at trial. Nonetheless, the court ordered sanctions against the attorney for $542,000 and against Lester for $180,000. Lester’s attorney also faced a disciplinary charge from the Virginia State Bar and agreed to a five-year suspension.

Here’s the bottom line.

So, what’s the take-away? Treat social media postings just like you would any other potential evidence. You would never advise your client to destroy a material and relevant document; treat social media postings and, in fact, all ESI, the same way. If you advise your client to take down any social media postings, make sure you preserve a copy to produce in discovery, if asked. Own the process; do not leave it to your client. The success of your client’s cause may depend on your ability to understand and manage his social media presence.