A Litigator's View of Social Media
Social Media can be a valuable litigation tool -- for either side.
Social media enables people to share their lives with one another,
whether to celebrate a personal or family milestone or to vent over the
inequities of work, friends or life in general.
It is important to keep in mind that in litigation all of those posts,
comments, likes, dislikes, messages, links, blogs, tweets, and chats on
the person’s various social media platforms are ripe for “mining” to
uncover evidence regarding relevant facts, or that person’s credibility
and veracity. Those same media will impact litigation matters you
become involved in, spark outrage against other individuals, employers,
or others with whom you have done business. Accordingly, lawyers
are very interested in gaining access to an opposing party/witness’s
social media while preserving and protecting access to their own
client’s. As noted in a recent formal ethics opinion by the North Carolina State Bar:
“Lawyers increasingly access social networks to
prepare or to investigate a client’s matter. However, the use of social
networks has ethical implications. Several rules restrict a lawyer’s
communications with people involved in a client’s matter. Rule 4.2
restricts a lawyer’s communications with persons represented by counsel.
Rule 4.3 restricts a lawyer’s communications with unrepresented
persons. Furthermore, all communications by a lawyer are subject to Rule
4.1’s prohibition on knowingly making a false statement of material
fact or law to a third person and to Rule 8.4(c)’s prohibition on
conduct involving dishonesty, fraud, deceit, or misrepresentation that
reflects adversely on the lawyer’s fitness as a lawyer.”
Social media as a source of discovery works both offensively and defensively.
Playing Offense
Offensively, the law constrains lawyers as to when and how
they may interface with others on social media platforms for
investigatory or informal discovery purposes. Although there exist
too many different scenarios and the social networks constantly
changing technology and rules make it impossible to specifically address
the issue here, generally the public portion of a person’s social media
presence is no different than other information that is publicly
available and the lawyer is free to review it.
As to an unrepresented person’s social network
presence, a lawyer may seek access to that person’s public or private
presence which may be available to any layperson, as long as the lawyer
uses his true identity and does not engage in deception or dishonesty.
The person contacted is free to accept, reject, or ignore the request,
or to ask for additional information. If the unrepresented person asks
the lawyer for additional information, the lawyer must accurately
provide the information or withdraw the request.
However, the rules are different for represented
parties. Unless the lawyer has obtained express consent from the
represented person’s lawyer, a request to a represented person beyond
what is publicly available interferes with the attorney-client
relationship. Therefore, a lawyer cannot request access to the
restricted portions of a represented person’s social network presence
without permission of the person’s lawyer. In this situation, the
definition of a “represented person” means representation relating to
the matter at issue relating to the reason for the request. But,
if you have shared your private postings with a third-party and that
third-party volunteers the information to the opposing party your
private comments, documents and photographs may still be
accessible. However, a lawyer may not direct or encourage a third
person to use deception or false representation to gain access to your
private posting presence.
Playing Defense
Social media, like all electronically stored information
(ESI), is considered the equivalent of documents and other tangible
evidence that is subject to discovery by the opposing party. It is
standard for me now to review my 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 therefore be
preserved. (A party or potential witness cannot delete such
material, however problematic it has become in the context of
litigation.)
What should your lawyer be doing for you with regard to
your social media presence? The “competency” requirement of Rule
1.1 of the North Carolina Rules of Professional Conduct for lawyers
(“RPC”) obligates attorneys to counsel clients on the potential legal
impact of their social media activity. Also see NC 2014 FEO
5. But attorneys and clients can go too far; deleting existing social
media posts or failing to preserve social media for discovery purposes
which could be determined to be an intentional 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)).
To avoid claims or arguments regarding spoliation, clients
should preserve their postings by printing the material or saving it to a
hard drive, memory stick or other storage media. A lawyer who
simply advises a client to preserve their social media has probably not
met his standard of conduct. It will be best for clients to allow
their lawyer to oversee and direct the preservation process of their
social media presence.
So, what should you take away from this brief
discussion of your social media presence’s relationship with the law?
Understand that your public social media presence is fair game for
discovery and evidentiary purposes. So too, can your private
social media presence be fair game given certain rules of conduct by the
lawyers seeking access to it.
Moreover, treat your social media presence like you
would treat any document or recording in your possession. Do not destroy
or remove social media material without first reviewing with your
lawyer whether removal is appropriate and, if it is to be removed, how
to preserve it. A lawyer should never advise a client to destroy a
material and relevant document; treat social media postings and, in
fact, all ESI the same way.
Be vigilant in what you decide to share on any social media platform.
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