Social Media and Spoliation – Can A Client Delete Her Facebook Posts?

Jurors, litigants, and their attorneys are increasingly savvy about social media.  At the same time, it seems that many people do not use the same “filters” that they employ in other parts of their lives. Put simply, they are not thoughtful about how their social media activity might be perceived.  A classic example of this is a Facebook post at the center of a now infamous case that demonstrates the dangers of social media.  In Lester v. Allied Concrete Co., 2011 Va. Cir. LEXIS 245 (Va. Cir. Ct. 2011 Sept. 6, 2011), the wrongful death plaintiff lost his young wife in a tragic accident, yet his Facebook page included a photo of him “clutching a beer can, wearing a T-shirt emblazoned with ‘I ♥ hot moms’ and in the company of other young adults.”  Id., 2011 Va. Cir. LEXIS 245 at *12.

As an attorney, what can and what should you do about your client’s social media activity?  Can you advise your client to remove content, or change privacy settings so opposing counsel and others cannot snoop?

As an initial matter, it seems obvious that an attorney may instruct a client to use discretion when posting on social media, or even advise the client to refrain from posting altogether.  This is akin to instructing your client on what to wear to court.  Impressions matter.  In fact, the North Carolina State Bar Council adopted the view that a lawyer’s obligation to provide competent and diligent representation (see, e.g., Mass. R. Prof. C. 1.1 and 1.3) requires a lawyer to “advise the client of the legal ramifications of existing postings, future postings, and third party comments.  Advice should be given before and after the law suit is filed.” See 2014 N.C. Ethics Op. 5, #1.

But what about existing social media?  Can it be made private?  Can it be purged?

The answer to the last question is an emphatic “no.”  Rule 3.4 of the Massachusetts Rules of Professional Conduct provides, in relevant part, that “[a] lawyer shall not: (a) unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value.  A lawyer shall not counsel or assist another person to do any such act; ….” M.R.C.P. 3.4. To purge damaging information on social media would, if relevant, likely constitute spoliation.  See Scott v. Garfield, 454 Mass. 790, 798 (2009) (“The doctrine of spoliation permits the imposition of sanctions and remedies where a litigant or its expert negligently or intentionally loses or destroys evidence that the litigant (or expert) knows or reasonably should know might be relevant to a possible action, even when the spoliation occurs before an action has been commenced.”).

This is exactly what happened in Lester.  The trial court found that plaintiff’s lawyer “instructed [his paralegal] to tell Lester to ‘clean up’ his Facebook because ‘we don’t want blowups of this stuff at trial.’”  Lester, 2011 Va. Cir. LEXIS 245 at *13.  To compound matters, the plaintiff had already been served with discovery requests that plainly sought such information.  The attorney’s obviously-improper response was to instruct the plaintiff to deactivate his account and to respond to the document requests “by stating that Lester had no Facebook page as of the date the response was signed.”  Id. at *14.  This approach resulted in a sanction of $542,000 against the lawyer and $180,000 against the plaintiff.  Lester v. Allied Concrete Co., 2011 Va. Cir. LEXIS 132, *4 (Va. Cir. Ct. Oct. 21, 2011).

The facts of Lester are admittedly extreme.  Some might even argue that concerns about spoliation are overblown, since there must be a showing that relevant evidence was destroyed.  See, e.g., Keene v. Brigham & Women’s Hosp., Inc., 439 Mass. 223, 234 (2003) (spoliation involves “negligently or intentionally lost or destroyed evidence known to be relevant for an upcoming legal proceeding”); Kippenhan v. Chaulk Servs., Inc., 428 Mass. 124, 127 (1998) (“The threat of a lawsuit must be sufficiently apparent, however, that a reasonable person in the spoliator’s position would realize, at the time of spoliation, the possible importance of the evidence to the resolution of the potential dispute.”).  This argument should provide an attorney little comfort, however, because if you instruct a client to delete content, a court might very well presume that you deemed it relevant.

The better course is to simply advise a client to make his or her social media account private.  See, e.g., New York County Lawyers’ Association Ethics Opinion 745 (July 2, 2013), p.2 (“There is no ethical constraint on advising a client to use the highest level of privacy/security settings that is available.”).  Indeed, doing so is prudent advice.  Why volunteer information – relevant or not – that opposing counsel can then use to their advantage?  Let opposing counsel affirmatively request such discovery, where you have the opportunity to object and put the onus on the requesting party to demonstrate to the court that such information is relevant.  See, e.g., Tapp v. New York State Urban Dev. Corp., 958 N.Y.S.2d 392, 393 (N.Y. App. Div. 2013) (“The motion court correctly determined that plaintiff’s mere possession and utilization of a Facebook account is an insufficient basis to compel plaintiff to provide access to the account or to have the court conduct an in camera inspection of the account’s usage. To warrant discovery, defendants must establish a factual predicate for their request by identifying relevant information in plaintiff’s Facebook account—that is, information that “contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, and losses, and other claims.’”); Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387, 388 (E.D. Mich. 2012) (“… Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view. … [T]here must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence.  Otherwise, the Defendant would be allowed to engage in the proverbial fishing expedition, in the hope that there might be something of relevance in Plaintiff’s Facebook account.”).

If your client objects to changing his or her privacy setting, however, and instead insists on removing content from social media, it is important that you save that content on a thumb drive or, at the very least, print out the soon-to-be-deleted pages.  This advice differs slightly from an Ethics Opinion by the New York County Lawyers’ Association on Professional Ethics.  That opinion entitled  “Advising a Client Regarding Posts on Social Media Sites”, concluded as follows:

But provided that such removal does not violate the substantive law regarding destruction or spoliation of evidence, there is no ethical bar to ‘taking down’ such material from social media publications, or prohibiting a client’s attorney from advising the client to do so, particularly inasmuch as the substance of the posting is generally preserved in cyberspace or on the user’s computer. New York County Lawyers’ Association Ethics Opinion 745 (July 2, 2013), p.3.

The better course, however, is for the attorney – and not just the client – to actively preserve any deleted content.  Such efforts will provide ammunition against any later allegations of spoliation.  See, e.g., Philadelphia Bar Ass’n Prof’l Guid. Comm., Op. 2014-5 (July 2014), (“A lawyer may, however, instruct a client to delete information that may be damaging from the client’s page, but must take appropriate action to preserve the information in the event it should prove to be relevant and discoverable.”); Social Media Ethics Guidelines, Commercial and Federal Litigation Section of the New York State Bar Association (March 18, 2014) (same).

As with discovery in general, the treatment of social media content requires lawyers to consider and balance their obligations to clients, adversaries and the court.  And as the social media landscape continues to evolve, it is important for the practitioner to keep abreast of those changes and to counsel clients about the preservation of social media and the pitfalls that social media can present.