Very recently the Florida Bar Board of Governors at their October Meeting gave lawyers some advice about what we can advise our clients to do with their social media accounts in the face of possible litigation.
Ethics advisory opinion 14-1 was approved to advise lawyers on what they can tell clients about increasing the privacy settings of their social media accounts or removing social media postings that are or may be the subject of litigation.
In summary, an attorney may advise a client pre-litigation to change privacy settings on the client’s social media pages so that they are not publicly accessible. Provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence, the lawyer also may advise that a client remove information relevant to the foreseeable proceeding from social media pages as long as the social media information or data is preserved.
In Florida the current state of the law is that normal discovery principles apply to social media, and that information sought to be discovered from social media must be “(1) relevant to the case’s subject matter, and (2) admissible in court or reasonably calculated to lead to evidence that is admissible in court.” Root v. Balfour Beatty Construction, Inc.,132 So.3d 867, 869-70 (Fla. 2nd DCA 2014).
What constitutes an “unlawful” obstruction, alteration, destruction, or concealment of evidence was considered to be outside the scope of an ethics opinion. However, there are cases addressing the issue of discovery or spoliation relating to social media, but in those cases, the issue arose in the course of discovery after litigation commenced. See, Allied Concrete Co. v. Lester, 736 S.E.2d 699 (Va. 2013) (Sanctions of $542,000 imposed against lawyer and $180,000 against the client for spoliation when client, at lawyer’s direction, deleted photographs from client’s social media page, the client deleted the accounts, and the lawyer signed discovery requests that the client did not have the accounts); Gatto v. United Airlines, 2013 WL 1285285, Case No. 10-cv-1090-ES-SCM (U.S. Dist. Ct. NJ March 25, 2013) (Adverse inference instruction, but no monetary sanctions, against plaintiff who deactivated his social media accounts, which then became unavailable, after the defendants requested access); Romano v. Steelcase, Inc. 907 N.Y.S.2d 650 (NY 2010) (Court granted request for access to plaintiff’s MySpace and Facebook pages, including private and deleted pages, when plaintiff’s physical condition was at issue and information on the pages is inconsistent with her purported injuries based on information about plaintiff’s activities available on the public pages of her MySpace and Facebook pages). In the disciplinary context, at least one lawyer has been suspended for 5 years for advising a client to clean up the client’s Facebook page, causing the removal of photographs and other material after a request for production had been made. In the Matter of Matthew B. Murray, 2013 WL 5630414, VSB Docket Nos. 11-070-088405 and 11-070-088422 (Virginia State Bar Disciplinary Board July 17, 2013).
A word to the wise. Remember social media is SOCIAL MEDIA.