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.
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.
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.