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eDiscovery and Social Media: The Duty to Preserve

The rise of Social Media has created numerous questions and issues when it comes to our ethical responsibilities. Can we advise clients to modify their Facebook page to make sure there are no offensive posts should a juror decide to look them up during trial? How about suggesting selective edits of certain portions of an Instagram page, or suggesting that a client add certain items to a Pinterest page to look more socially acceptable? All of these situations implicate an important ethical responsibility lawyers have regarding potential evidence: the duty to preserve.

While it is ethically permissible to advise a client on actions they may take in the future, courts have come down hard on litigants and attorneys who have failed to preserve evidence contained in Social Media accounts. Here are several important rulings regarding the duty to preserve social media evidence from 2013:

In Gatto v. United Air Lines, Inc., No. 10-CV-1090-ES-SCM, 2013 WL 1285285 (D. N.J. March 25, 2013), the court found that the plaintiff’s actions to deactivate his Facebook account during litigation amounted to spoliation of evidence. In Gatto, plaintiff’s Facebook account had been the subject of numerous discovery requests and at least one discovery conference. Id at *1-2. Plaintiff even adjusted the password to give defendants access, although discussion about the extent of access defendants would have was ongoing. Id. However, after being notified of access to his Facebook account from an unknown IP address, plaintiff deactivated his account. Id. Facebook permanently deleted the account information, and the court held that it was likely that, contrary to plaintiff’s assertions, he had taken steps beyond simple deactivation to ensure permanent deletion. Id at note 1. The court held that plaintiff’s actions constituted spoliation of evidence, and held that defendants were entitled to an adverse inference instruction as to information in the account. Id at *5.

In another now-famous case of spoliation, Allied Concrete Co. v. Lester, 285 Va. 295, 736 S.E.2d 699 (2013), plaintiff’s counsel instructed his client, plaintiff in a wrongful death action concerning the death of his wife, to “clean up” his Facebook page. Id at 302, 736 S.E.2d 702. The contents to be “cleaned”? Posts and photos such as one with plaintiff and friends, drinking beer, and wearing a t-shirt containing “I [heart] hot moms.” Id. Plaintiff ended up deleting his entire account. Id. Eventually, plaintiff’s $10 million verdict was reduced dramatically, and over $700,000 in fines were issued to plaintiff’s attorney and plaintiff, individually, in sanctions.

Another case, Hawkins v. College of Charleston, No. 2:12-CV-384-DCN, 2013 WL 6050324 (D. S.C. Nov. 15, 2013), helps to clarify when deletion of social media posts will be considered spoliation. In Hawkins, plaintiff filed suit alleging that he was discriminated against in violation of the Americans with Disabilities Act. Id at *1. Plaintiff was accused of deleting relevant evidence from his Facebook page in two separate occasions – one about a year prior to filing suit, and the other while the action was pending. The court held that although it could not determine any particular bad faith in the deletions that came prior to filing suit, the entries that were deleted after suit was filed constituted bad faith on its face. Id at *5.

Another case for attorneys to take note of is Giacchetto-v-Patchogue-MedfordUnion, No. CV 11-6323 (E.D.N.Y. May 6, 2013). In that case, the court held the following:

“[T]he Court directs that Plaintiffs (sic) postings be reviewed for relevance by Plaintiff’s counsel and that Plaintiff’s counsel – not Plaintiff – make a determination regarding the relevance of the postings, keeping in mind the broad scope of discovery contemplated under Rule 26.”

The onus for providing adequate responses to discovery requests for social media postings will fall on the attorney. As you can see by the cases above, it’s definitely something to take seriously, lest you incur the wrath of the judge.