- What is Discoverable?
There are numerous social networking sites out there including: Facebook; Twitter; LinkedIn; Instagram; YouTube; Pinterest; and a variety of others. People often use these websites daily, which contain a treasure trove of information. The reality is that an increasing number of individuals use social media webpages to communicate with others, share their opinions and personal details through posts, photos and videos and to even get news and information. In this day and age, a competent lawyer realizes their duty to stay up-to-date regarding social media use and discovery.
Discovery utilizing these websites may reveal: postings that display a timeline of actions; time spent away from children or spouse; boastings of compensation, promotions, or use of unknown assets; photographs or videos of relevant or inappropriate behavior; potential witnesses (thereby minimizing the need for private investigators); the ability to work; business details; job history; criminal activity; extreme ideologies or beliefs; and countless other relevant information.
All of above can be discoverable under Federal Rule of Evidence 401, which states:
Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action.
- Some Case Examples
Quite often, social media evidence and electronic evidence in general is the icing on the cake in divorce litigation. For instance, in In re Marriage of Bates, the court cited an email from the wife to the husband saying, “You will never feel so much pain when I’m done with you…I’m going to embarrass [sic] you make the kids hate you.” This supported an evaluator’s finding of alienation and the court upheld an award of sole legal custody to the father. For the purposes of awarding sole physical custody, mother’s posts on Facebook stating that the children “have a really bad father” were relevant as oldest child could clearly access Facebook. At trial, the wife claimed the emails were influenced by her medications and stress; and on appeal, the court rejected her subsequent assertions that the emails had been altered.
Highlighting the ever-changing view of courts on social media evidence, Romano v. Steelcase, which allowed the discovery of an entire Facebook profile was recently disagreed with by the Federal Eastern District of in New York, Giacchetto v. Patchogue-Medford Union Free School District. In Giacchetto, the federal judge examining claims both under federal and state law held that only the social media postings, which referenced events alleged in the teacher’s complaint, were relevant and discoverable.
Social media content can be helpful in unexpected ways, like proving the size of a business. In Safdar v. AFW, Inc., the plaintiff filed suit against former employer to recover unpaid overtime wages under the Fair Labor and Standards Act. The cause was submitted on affidavit, and plaintiff used print outs from defendant’s Facebook page to corroborate his story regarding the size of defendant’s business. The defendant’s Facebook page listed nine stores, the same number cited in the plaintiff’s affidavit, whereas the defendant had claimed just two stores in his own affidavit.
Additionally, in Blade v. Harrah’s Entertainment, Inc., the plaintiff in an age discrimination case was able to use LinkedIn to show that he was indeed an employee of Harrah’s. His supervisor had testified in court that neither he nor the plaintiff were employees of Harrah’s, but after the supervisor’s LinkedIn profile listed Harrah’s as his employer, the court found the supervisor to lack credibility. At least one court has held that threats posted by a defendant on a social networking website were “sent” to the recipient.
Social media evidence can also prove to be the tipping point even when alone it is insufficient for the judge to rule in your favor. In Leenhouts v. Leenhouts, a wife placed a motion for default on husband’s desk in the marital home. Husband, several days later, placed messages on Facebook to the tune of “you thought you had me” followed by several expletives. While the court was hesitant to use the post as proof of service, husband’s testimony, that he could not recall who his Facebook post was directed at, damaged his credibility to extent that the court believed he had received service.
In Harris v. Harris, a Missouri case, the court heard evidence on the Father’s Facebook posts in his divorce case. Father had posted violent and threatening messages about mother on Facebook while the action was pending. Father had a history of violence with mother and child. Mother was prevented visitation by father and refused any information about their child for one entire year. Father also traveled a lot so his girlfriend would watch the child. The court also had evidence of the girlfriend “liking” the father’s violent posts on Facebook. Ultimately, the social media posts helped Mother get sole physical custody.
In Farris v. Farris, the trial court judge did not see the relevance of Husband’s attempts to enter Facebook pictures as evidence. Husband was attempting to enter pictures of marital property Wife sold at a garage sale after they had separated to prove a list of marital assets he wanted were missing. The trial judge said specifically during the trial:
What he wants to do is spend hours and hours showing Facebook pictures of items we all know were in the home and everyone has been asked to divide and he for some reason has this perverse, perverse need to play yard sale and Facebook games and put a bunch of pictures in here that nobody cares about and I don’t care where this stuff is or to see pictures of it. And I don’t even intend to look at it.
However, the Appellate Court reversed and remanded the decisions of the trial court due to a lack of impartiality and appearance of impropriety on the part of the trial, in part, based on comments like this and others made during the trial.
- Advising Clients
- Social Media Restraint
It is critical that a competent, communicative and diligent lawyer talk to their
client about their social media activities and presence. Today, it is increasingly likely that social media usage can end up becoming relevant in a variety of litigation. Many litigants may consider taking a break from social media if they are unable to restrain themselves into posts and social media activity that could hurt their case. Otherwise, evidence, such as questionable pictures, could be used as ammunition in court proceedings.
On the other hand, some uses of technology are completely unavoidable as our social interactions become more technologically integrated. If your client must stay connected, they should be advising before transmitting something online. Further, they should probably be sure their privacy settings are heightened and that they have viewed their friends and followers, but keep in mind the nuances explained below. For example, consider who can view information posted. In particular, people may have granted access to their page to friends or “friends of friends” who may be more aligned with other parties to litigation.
Clients should also discuss their online presence with a legal professional. Litigation is not easy, but it can become worse if a clients’ issues or private matters are publicized on a large scale. A lawyer should help a party understand what is discoverable and the risks of their social media activity.
- Spoliation Considerations
Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation. This implicates Model Rules of Professional Conduct 3.4, 8.4 and others. Additionally, the duty to avoid spoliation falls upon both the attorney and the client. It is a good idea when possible to meet early in the case with the client to discuss the nature and scope of what must be preserved. Remember, that for continued functionality of certain devices, like cell phones or tablets, messaging histories or photographs are routinely deleted to free up memory for continued use. Federal Rule of Civil Procedure 37(e) provides that spoliation sanctions are not permitted where there is a finding that the spoliating party acted in good faith and the information was lost “as a result of the routine operation of a storage system.”
Further, a party need not provide discovery of electronically stored information that the party identifies as not reasonably accessible. Often, in assessing any sanctions, the court will rely on experts who have examined the material. Ultimately, there is a high burden to prove spoliation because of the speculative nature as to whether any favorable evidence would have been discovered.
Timing with regard to spoliation is also crucial. Unfortunately, in litigation, state courts have not provided much guidance on when a “finding of the reasonable anticipation of litigation” would arise. Moreover, in litigation, evidence is increasingly coming from social media websites where users as a matter of routine delete and subsequently re-activate accounts.
Confirming that proving spoliation may be difficult, the court in PTSI Inc., v. Haley, refused to issue sanctions for spoliation of messages on a phone. The record was clear that the party routinely deleted messages due to volume of conversations to ensure that the party could still utilize the messaging function of the phone. The appellate court was suspicious of the deletion of emails, but it would not hold the trial court abused its discretion in not awarding sanctions based on the deletion of emails. Nonetheless, it is vital to advise clients not to do anything that can be construed as spoliation of relevant evidence.
- Ethical Concerns
While it often makes sense to advise a client about the need for showing social
media restraint during pending litigation by not commenting about the case or engaging in activity that can harm a case, according to an article published the Office of Chief Disciplinary Counsel, it is not appropriate at the same time for a lawyer to advise their client to “clean up” their accounts by deleting harmful postings or shutting down social media accounts. As the article points out, Rule 4-3.4 prohibits an attorney from destroying or concealing a document that has potential evidentiary value or from advising his client to do the same.
There are various ethics opinions that are also relevant on this point. For
example, in New York, Formal Opinion 745 states the following:
Attorneys’ duties not to suppress or conceal evidence involve questions of substantive law and are therefore outside the purview of an ethics opinion. We do note, however, that applicable state or federal law may make it an offense to destroy material for the purpose of defeating its availability in a pending or reasonably foreseeable proceeding, even if no specific request to reveal or produce evidence has been made. Under principles of substantive law, there may be a duty to preserve “potential evidence” in advance of any request for its discovery. VOOM HD Holdings LLC v. EchoStar Satellite L.L.C., 93 A.D.3d 33, 939 N.Y.S. 2d 331 (1st Dep’t 2012) (“Once a party reasonably anticipates litigation, it must, at a minimum, institute an appropriate litigation hold to prevent the routine destruction of electronic data.”); QK Healthcare, Inc., v. Forest Laboratories, Inc., 2013 N.Y. Misc. LEXIS 2008; 2013 N.Y. Slip Op. 31028(U) (Sup. Ct. N.Y. Co., May 8, 2013); RPC 3.4, Comment . Under some circumstances, where litigation is anticipated, a duty to preserve evidence may arise under substantive law. 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.
In a later article, the New York State Bar issued some additional clarification:
A lawyer may advise a client with regard to posting new content on a social media website or profile, as long as the proposed content is not known to be false by the lawyer. A lawyer also may not “direct or facilitate the client’s publishing of false or misleading information that may be relevant to a claim.”
The Philadelphia Bar Association also issued an ethical opinion on this topic finding:
A lawyer may advise a client to change their privacy settings on the client’s Facebook page.
A lawyer may instruct a client to make information on the social media website “private,” but may not instruct or permit the client to delete/destroy a relevant photo, link, text, or other content, so that it no longer exists.
The North Carolina State Bar has also weighed in on this topic stating:
If the client’s postings could be relevant and material to the client’s legal matter, competent representation includes advising the client of the legal ramifications of existing postings, future postings, and third party comments.
If removing postings does not constitute spoliation and is not otherwise illegal, or the removal is done in compliance with the rules and law on preservation and spoliation of evidence, the lawyer may instruct the client to remove existing postings on social media. The lawyer may take possession of printed or digital images of the client’s postings made for purposes of preservation.
Likewise, in a Florida Bar Ethics Opinion, they found that a lawyer may:
[A]dvise that a client 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.
While it appears from the above ethical decisions that advising a client to change their privacy settings is permissible, there are some who still have some concerns. Some would argue that a lawyer could be subjective to allegations that they have engaged in conduct that “obstruct” another party’s access to evidence or alter, destroy or “conceal” material that may have evidentiary value in violation of Model Rule of Professional Conduct 3.4.
Thus, advising a client to even change their privacy settings still does come with some potential risks, despite the ethical opinions listed above. For this reason, it appears much safer for a lawyer simply to advise a client as to future social media activity in which they may engage versus providing advice relative to prior social media activity.
Nancy Rippberger, Facebook – Friend or Foe? What Are the Ethical Risks of Using Facebook in Your Litigation Practice?, Office of Chief Disciplinary Counsel, available at: https://www.mochiefcounsel.org/articles/2013Aug.pdf (last visited January 3, 2019).
[hereinafter NYC LA Opinion].
ics_ Guidelines.html (last accessed January 3, 2019).
John G. Browning, A Clean Slate or a Trip to the Disciplinary Board? Ethical Considerations in Advising Clients to “Clean Up” Their Social Media Profiles (2015), 763 Creighton L. Rev. 48, available at: http://dspace.creighton.edu:8080/xmlui/bitstream/handle/10504/73708/48CLR763.pdf?sequence=1&isAllowed=y (last accessed January 3, 2019).