Ethical Considerations of Social Media Evidence in Discovery

As the use of social media has become ubiquitous in today’s society, so has the necessity to obtain evidence in litigation from the social networking websites of employees, former employees, and witnesses.  However, the use of social media in litigation poses unique ethical and practical challenges for counsel, particularly during the course of discovery.  This article briefly identifies two such areas of issues: (1) ethical issues counsel faces when obtaining evidence from social networking websites; and (2) spoliation issues counsel must consider with their client’s social media presence.  

Ethical Issues When Obtaining Social Media Evidence in Discovery

The rise in the use of social media has resulted in key evidence being available on social media platforms, such as Facebook, Twitter, or Instagram.  Attempting to view and collect such evidence, however, presents unique ethical issues.   As a result, many bar associations have issued ethics opinions addressing the ethical boundaries when obtaining evidence from social networking websites, a selection of which are provided below. 

The Colorado Bar Association Ethics Committee recently issued its opinion regarding how lawyers may access such evidence.[1]  The opinion states that evidence that is publicly available may be gathered freely and used in any matter allowed by law or by the Colorado Rules of Professional Conduct.[2]  However, information that is not public, and is protected by a user’s privacy setting or otherwise restricted from public view, can be gathered only when the lawyer has determined whether the user is represented by counsel, in compliance with the requirements of Colorado Rule of Professional Conduct 4.2 (concerning direct contact with represented parties) and Rule 8.4(c) (prohibiting dishonest conduct).[3] If the user is represented by counsel, opposing counsel must get consent from that counsel to view the social media posts and/or comments.[4]  If not represented, counsel may ask the user to access the private content, commonly via a “friend request,” only with a full disclosure by first identifying himself or herself as a lawyer and disclosing the nature of the matter in which plaintiff’s counsel represents his or her client.[5]  And, importantly, having a third party, such as a paralegal, make the “friend” request is not an acceptable way to circumvent the Rules; Rule 8.4(a) prohibits a lawyer from violating the Rules of Professional Conduct “through the acts of another.”[6]

The Bar of the City of New York Committee on Professional and Judicial Ethics issued an opinion addressing “the narrow question of whether a lawyer, acting either alone or through an agent such as a private investigator, may resort to trickery via the internet to gain access to an otherwise secure social networking page and the potentially helpful information it holds.”[7] The opinion specifically addresses whether an attorney’s “direct or indirect” use of affirmatively deceptive behavior to “friend” potential witnesses is proper.[8]  The opinion insightfully discusses the difference between making contact in the “virtual world” and the “real world,” noting that “[d]espite the common sense admonition not to ‘open the door’ to strangers, social networking users often do just that with a click of the mouse.”[9] The opinion concludes that although New York Rule of Professional Conduct 4.1 prohibits lawyers from making false statements and Rule 8.4(c) prohibits lawyers and firms from engaging in conduct “involving dishonesty, fraud, deceit or misrepresentation, ethical boundaries are not crossed when an attorney uses truthful information to obtain access subject to all other ethical requirements.[10] Thus, an attorney may use her real name and profile to gain access to an unrepresented person’s social networking website “without also disclosing the reasons for making the request.”[11]   The opinion also notes that communications of a lawyer and her agents with parties known to be represented by counsel are still governed by Rule 4.2, which prohibits such communications unless the prior consent of the party’s lawyer is obtained or the conduct is authorized by law.[12]

The Philadelphia Bar Association Professional Guidance Committee issued guidance as to whether it would be proper under the Pennsylvania Rules of Professional Conduct for the inquirer to ask a third party to “friend” a witness on various social media accounts to obtain access to information on the witness’ pages.[13]  The inquirer in this scenario had deposed a witness who was unrepresented and was not a party to the litigation, and who testified that she had various social media accounts which the inquirer believed may contain relevant to the matter in which the witness was deposed.  The inquirer proposed whether a third party could “friend” the witness,  truthfully state his or her name, but not disclose the intent behind the “friend” request, which was to gather information for a pending lawsuit.[14]  The Committee opined that such conduct would violate Pennsylvania Rules of Professional Conduct 5.3, 8.4 and 4.1, as the planned communication by the third party with the witness was deceptive, omitting a highly material fact; namely, that the purpose of the “friend request” was to obtain information to share with a lawyer for use in a lawsuit.[15] Although the inquirer suggested that his proposed conduct was similar to the use of private investigators who videotape public conduct of a plaintiff in personal injury lawsuits, the Committee noted the difference between a subject presenting himself to the public without restriction, and the social networking pages of the witness in this case which were set to “private.”[16]

The San Diego Bar Association issued an opinion considering whether an attorney representing a former employee in a wrongful discharge action violated his ethical obligations when his client provided him a list of his former employer’s employees, and the attorney sent friend requests to two high-ranking company employees on the list.[17]   The client had identified these employees as being dissatisfied with the employer, and therefore likely to make disparaging comments about the employer on their social media page.[18] The opinion considered the inquiry under the California Rules of Professional Conduct, especially Rule 2-100, the State Bar Act, and in the context of ABA Model Rule 4.2 regarding when a lawyer may communicate with high-ranking employees of a corporation.[19]  Ultimately, the San Diego Bar Association’s opinion concluded that while a lawyer may ethically view or access profiles which are publicly available to everyone, different rules may apply when an individual has a profile visible only to his or her “friends.”[20]   Thus, an attorney may not make ex-parte friend requests to a represented party andan attorney’s duty not to deceive prohibits the attorney from making friend requests to unrepresented witnesses without disclosing the purpose of the request.[21]

Finally, the New York State and New Hampshire Bar Associations both considered a lawyer’s use of social media information provided by the client.  The New York State Bar Association guidelines state that “A lawyer may review the contents of the restricted portion of the social media profile of a represented person that was provided to the lawyer by her client, as long as the lawyer did not cause or assist the client to: (i) inappropriately obtain confidential information from the represented person; (ii) invite the represented person to take action without the advice of his or her lawyer; or (iii) otherwise overreach with respect to the represented person.”[22]  New York interprets “overreaching” as prohibiting “the lawyer from converting a communication initiated or conceived by the client into a vehicle for the lawyer to communicate directly with the nonclient.”[23] Similarly, the New Hampshire Bar Association’s Ethics Advisory Committee opined that “a lawyer’s client may, for instance, send a “friend” request or request to follow a restricted Twitterfeed of a person, and then provide the information to the lawyer, but the ethical propriety ‘depends on the extent to which the lawyer directs the client who is sending the [social media] request,’ and whether the lawyer has complied with all other ethical obligations.”[24]

Thus, although the majority of ethics opinions issued by bar associations appear to agree that public social media postings are fair game for use in discovery, most also warn that using deceptive tactics to gain information contained on privacy protected accounts can run afoul of an attorney’s ethical obligations.  It is important to research the jurisdiction in which you are litigating a matter for guidance on the ethical parameters of using social media as part of the investigation of a case.

Preservation and Spoliation Issues with the Social Media Evidence

Evidence residing on social media platforms is subject to the same duty to preserve as other types of electronically stored information; however, preservation of this data can be much more difficult for attorneys to control. 

The New York State Bar Association has addressed specifically a lawyer’s duty to properly advise a client on preservation of social media evidence.[25]   The guideline states that a “lawyer may advise a client as to what content may be maintained or made private on her social media account, as well as to what content may be ‘taken down’ or removed, whether posted by the client or someone else, as long as there is no violation of common law or any statute, rule, or regulation relating to the preservation of information.”[26]  Further, “unless an appropriate record of the social media information or data is preserved, a party or nonparty may not delete information from a social media profile that is subject to a duty to preserve.”[27]  The guideline further explains that, although a lawyer must ensure that potentially relevant information is not destroyed “once a party reasonable anticipates litigation,” when litigation is not pending or “reasonably anticipated,” a lawyer may more freely advise a client on what to maintain or remove from social media.[28]  The Philadelphia Bar Association’s guidance suggests that a lawyer may “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.”[29]

Several courts have addressed the issues and consequences facing litigants regarding the preservation of social media evidence.  The District of Nevada affirmed the magistrate’s order granting an adverse inference instruction spoliation sanction following the plaintiff’s destruction of social media evidence. [30]  In this case, the plaintiff and the defendant’s wife were Facebook ‘friends’ until shortly after the plaintiff retained counsel and filed suit alleging that the defendant had sexually assaulted her at work.[31]  As evidence that the relationship was consensual, the defendant offered his wife’s testimony that the plaintiff routinely commented on Facebook about how enjoyable her job and job environment were, and how much she loved working with the defendant. [32] The posts were not produced during discovery, and were no longer available because the plaintiff had deleted the posts.[33]  The court found that “once Plaintiff retained counsel, her counsel should have informed her of her duty to preserve evidence and, further, explained to Plaintiff the full extent of that obligation.”[34]  Thus, even if the plaintiff’s counsel “failed to advise Plaintiff that she needed to save her Facebook posts and of the possible consequences for failing to do so,” the plaintiff’s intentional deletion of Facebook content could not be characterized as “innocent” or “an accident,” but rather, was done with “a culpable state of mind.”[35]  The court held that the adverse inference instruction was proper because the “destroyed evidence” was detrimental to Plaintiff’s claims.[36] 

The District of New Jersey granted a spoliation sanction against a plaintiff whose Facebook account was deleted automatically fourteen days after he deactivated his account.[37]  For purposes of damages and overall issues of credibility in the plaintiff’s personal injury action, the court had authorized defense counsel to access the plaintiff’s documents and information on Facebook for evidence regarding the plaintiff’s physical and social activities.[38] Although the plaintiff argued that he did not intentionally destroy evidence in that he was not aware his page would be permanently deleted, the court held that the plaintiff’s culpability is largely irrelevant, as it cannot be denied that the defendant was prejudiced. [39]

The District of New Jersey did not, however, impose a spoliation sanction where a defendant made a change to his profile picture on Facebook during discovery.[40]  Plaintiff asked for a spoliation sanction based on the defendant changing his profile picture from a picture displaying a dress at the center of a trademark infringement case without preserving the prior image.[41] The court found that although the defendant was on notice that he had to preserve evidence, it would not have been immediately clear that changing his profile picture would undermine discoverable evidence.[42]  While the court held that imposing sanctions was too harsh as the spoliation was unintentional, it found that the loss of this evidence was to some extent prejudicial to plaintiff.[43]  Thus, the court ordered the defendant to temporarily change his profile picture back to the picture of the allegedly infringing dress for the purposes of creating a PDF file that could be used as evidence during the litigation.[44]

Finally, in Virginia, a court sanctioned both the plaintiff and his attorney for spoliation of social media evidence.[45]  In this wrongful death case where the plaintiff lost his wife in an accident, the plaintiff’s attorney instructed his paralegal to help the plaintiff “clean up” his Facebook and MySpace pages to avoid certain pictures being used at trial, such as a picture of the plaintiff “clutching a beer can, wearing a T-shirt emblazoned with ‘I ♥ hot moms’ and in the company of other young adults.”[46]  As instructed, the plaintiff deleted sixteen pictures and deactivated his pages.[47]   Exacerbating their actions, the plaintiff had already been served with discovery requests that specifically sought such information, and the attorney’s response was to instruct the plaintiff to deactivate his account and to respond to the document requests “by stating that [the plaintiff] had no Facebook page as of the date the response was signed.”[48]   Although the pictures were recovered by forensic experts, the court imposed monetary sanctions of $542,000 against the lawyer and $180,000 against the plaintiff and reported the attorney to the state bar association.

Conclusion

As is the case with discovery generally, the handling of social media content requires lawyers to consider and balance their obligations to clients, adversaries and the court.  As the social media landscape continues to evolve, it is important for lawyers to be aware of those changes and to counsel clients about the preservation of social media and the ethical pitfalls that social media can present.

[1] Colorado Bar Association Ethics Committee Opinion 127.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Formal Opinion 2010-2: Obtaining Evidence from Social Networking Websites, Assn. of the Bar of the City of New York Committee on Professional and Judicial Ethics.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Philadelphia Bar Association Professional Guidance Committee, Opinion 2009-02

[14] Id.

[15] Id.

[16] Id.

[17] San Diego County Bar Association Legal Ethics Opinion 2011-2 (May 24, 2011).

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] New York State Bar Association Social Media Ethics Guidelines (2014).

[23] Id.

[24] New Hampshire Bar Association’s Ethics Advisory Committee Opinion 2012-13.05 (2012).

[25] New York State Bar Association, Social Media Ethics Guidelines (2014), No. 5.A.

[26] Id.

[27] Id.

[28] Id.

[29] Philadelphia Bar Association Professional Guidance Committee, Opinion 2014-05.

[30] Painter v. Atwood, 2014 WL 3611636 (D. Nev. 2014).

[31] Painter v. Atwood, 2014 WL 1089694, *2 (D. Nev. 2014).

[32] Id.

[33] Id. at *6.

[34] Id.

[35] Id. at *9.

[36] Id.

[37] Gatto v. United Airlines, Inc., 2013 WL 1285285 (D. N.J. 2013). 

[38] Id. at *2.

[39] Id. at *4.

[40] Katiroll Co. v. Kati Roll & Platters, Inc., 2011 WL 3583408 (D. N.J. 2011).

[41] Id. at *3.

[42] Id. at *4.

[43] Id.

[44] Id.

[45] Lester v. Allied Concrete Co., 83 Va. Cir. 308 (2011), aff’d, 285 Va. 295 (2013).

[46] Id. at *5

[47] Id.

[48] Id.

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