We are using an increasing number of mediums to communicate today, and with this advent in technology, lawyers must likewise learn the new rules associated with discovery and social media – or adapt and stretch the old rules. Facebook, Twitter, Instagram, Tumblr, and others are all new platforms for sharing and obtaining information, some of which may be used in litigation. Given the relative novelty of these channels, the discovery process for them is still murky and developing. Nonetheless, certain rules have emerged.
Courts have established that during the discovery process, social media is not afforded special treatment, and must be included during relevant production. See, e.g., Crispin v. Christian Audigier, Inc. 2010 U.S. Dist. Lexis 52832 (C.D. Cal. May 26, 2010). Furthermore, Romano v. Steelcase Inc. found that for social networking sites such as Facebook and Myspace, a party has no legitimate reasonable expectation of privacy, since these sites do not guarantees complete privacy, and the nature of public posts is to make them available to anyone with a computer. __ Misc. 2d. __, 2010 NY Slip Op. 20388 (Sup. Ct., Suffolk County 2010).
Romano went further, however, and held that even private posts (that is, posts that a user only shares with herself or friends) may be used in litigation under the “material and necessary” standard. This standard is applied on a case by case basis, and weighs the defendant’s need for material and necessary information against the plaintiff’s right to privacy. In the instance of Romano, the plaintiff claimed damages for being confined to her bed, yet littered her Facebook and Myspace pages with pictures of herself out and about. Because the plaintiff was asserting damages from decreased enjoyment of life, evidence of herself active and outside was deemed by the court to be essential for the defendant’s case. Therefore, applying the material and necessary standard, the court ruled that the private portions of the plaintiff’s site had to be made available to the defendant. Apparently, very little is considered sacred when it comes to social media.
It might be tempting instead to simply delete any information that would disadvantage your case, but lawyers and clients must likewise proceed with caution in this arena. Lester v. Allied Concrete Co. shows the terrible consequences that befall careless counsel. Nos. CL08-150, CL09-223 (Va. Cir. Ct. Oct. 21, 2011); http://abovethelaw.com/2011/11/facebook-spoliation-costs-widower-and-his-attorney-700k-in-sanctions/. After discovery requests had been served, the plaintiff became aware of Facebook photos that would cast him in a negative light, to which the plaintiff’s attorney gave the following fatal advice: he should “clean up” his Facebook posts, because they would not want the evidence brought up at trial. Following his lawyer’s suggestion, the plaintiff promptly deleted sixteen mildly incriminating pictures. The court’s response was severe, finding spoliation and giving adverse inference to the plaintiff. In addition, the court held both the plaintiff and his lawyer accountable; the court referred the lawyer to the bar, referred the plaintiff to the attorney general for perjury, and reduced the damages awarded by the jury from $6 million to $2 million.
It is clear that evidence rules, such as spoliation, apply to social media, and that courts will not excuse the poor representation of lawyers who are unfamiliar with their application. The onus is on lawyers to advise clients properly; Lester stated outright that attorneys have an ethical obligation to educate unsophisticated litigants about discovery of social media in particular. The NYCLA Ethics Opinion 745 states that attorneys may specifically advise clients as to (1) what they should/should not post on social media, (2) what existing postings they may or may not remove, and (3) the particular implications of social media posts. If this discussion takes place early enough, before there is a duty to preserve, there is no ethical bar to “taking down” such material from social media publications. But, given that the duty to preserve often arises when an individual reasonably anticipates litigation, the fact that they are talking to lawyer makes it unlikely that there is no duty to preserve. On the flipside, lawyers may advise clients to affirmatively publish information on a social media site, as long as that information is truthful and not misleading.