Seeking The Disclosure of Social Media – Part 2

The abundance of information accessible on social media websites has dramatically changed the way personal injury litigators investigate and try cases. Social media content plays a critical role during discovery and at trial. Therefore, litigators need to demand that any and social media be preserved, however, timing is everything.

When a case arrives in our office, one of the earliest phases of evaluation is to perform a search online for the plaintiff to begin to create a three dimensional profile of the individual bringing the lawsuit. It’s crucial to begin this process prior to serving demands for authorizations to access a litigant’s online content. While many individuals lack the necessary filter in managing their online profile, recent developments have shown that may be changing. 

More than 1 in 4 young adults have posted things on social media that they fear may be used against them when it comes to employment,. Among 18- to 34-year-old social media users, 29 percent say they feared that their photos, comments, or other personal information could come back to bite them — either by causing a prospective employer to turn them down for a job, or by giving a current employer a reason to fire them.

A recent social media survey found:

  • 29% of young social media users fear their posts could cause trouble at work.
  • 21% of young social media users have removed or taken down a social media posting over employment concerns.
  • 82% of young social media users say they pay at least some attention to their privacy settings.

This self-awareness of selectively deleting or limiting access to one’s online profiles will only be re-enforced or initiated by a prudent attorney in counseling their client. While an increasing number of individuals have become more savvy and refined in their approach to their online profile, legally, users cannot claim an exception of privacy for that they have posted, shared, messaged or tagged for public view on their social media sites. In contrast, delete is a misnomer. Technically, users do not have precise control over what or when content in their accounts is deleted.

Litigators should realize that content that is shared or linked with other members creates duplicate copies. A person involved in a legal action may not be in control of the messages, images, or other information that he or she is charged with handing over in the discovery process. Importantly, deleting content does not actually delete it. Users do not delete content, but rather mark it for deletion. For example, according to Facebook’s Privacy Policy, “deleted information may persist in backup copies for up to 90 days.” Content a member has on his Facebook page is different from what Facebook has. So there remains the possibility that subpoenaed data will, in fact, include relevant information.

The discovery process was complicated when Facebook introduced a Download Your Information (“DYI”) feature accessible from the Account drop-down menu. This enabled users to download everything they had posted on Facebook, all communication, messages, posts, images, status updates, and profile information. However, users can manipulate the content prior to the download and Facebook may delay processing of changes to an account. Therefore, DYI gives no assurance that all responsive content has been captured and produced. Social pages can be captured or scraped with software tools to preserve them, but these processes need to be done by someone who knows how to insure that content is not overlooked. However, this can get expensive for solo practioners and small-to-medium law firms which have not dealt with electronic storage information (“ESI”) issues. 

Assuming social media postings are an issue in one’s case, what are the ethical obligations in pursuing discovery under social media this matter? CPLR 3101 Scope of Disclosure, as a general principle, calls for the full disclosure of all matter material and necessary in the prosecution or defense of an action. These include party statements. See CPLR 3101(e) Party’s Statement.  It’s important to remember that a) the CPLR disclosure requirements for party statements are broad and b) it favors disclosure of any and all statements, however, there are some ethical limits in pursuing social media statements.

As per the New York State Bar Association Ethics Opinion 843 (2010)[2], an Attorney does not engage in deception by accessing publically available information or information that is available to anyone who is a member of Facebook NOR can attorney cannot friend or direct a third person to friend a party in order to access page. Violates rule 8.4 (prohibits deceptive or misleading conduct), 4.1 (prohibiting false statements of fact or law) and 5.3[b][1] (imposes responsibility on lawyers for unethical conduct performed by third-party at direction of attorney).

In New York City Bar Association Ethics Opinion 786 (2010)[3], a question was posed as to whether an attorney could friend, directly or through a third party, an unrepresented person to obtain information for use in litigation?  It was stated as yes, so long as deception is not used, as it encourages use of informal discovery.  

And what about dealing with your clients who may have posted on any number of social media cites? A recent ethics opinion;[4] concludes that lawyers may ethically counsel civil clients about their use of social media, including, in some circumstances, advising them to “take down” harmful social media content.  The opinion addressed three questions:

    1. May attorneys counsel clients about what they should or should not post on social media sites?
    2. May lawyers instruct clients to “take down” certain materials from existing social media sites?
    3. May lawyers counsel their clients about the legal implications of their social media activity?

According to the NYCLA Opinion, the answer to each question is “yes,” with certain caveats.  First, lawyers can advise their clients about what they should and should not post on social media, as long as they don’t participate in the creation of false evidence.  Second, lawyers are not ethically barred from advising clients to take down social media content, as long as there is no duty to preserve the material under substantive law. Third, lawyers may counsel clients about the legal implications of their social media content, including how it might be used for or against them in a civil case.

Other highlights from the opinion:

      • Rule 3.4 prohibits lawyers from suppressing or concealing social media content that should be revealed;
      • Rule 3.1(a), which prohibits lawyers from asserting frivolous claims or issues, extends to false factual statements that are contradicted by the client’s social media postings;
      • Rules 3.3(a)(1) and 3.4(a)(4) require lawyers to take remedial action if clients testify falsely about whether changes were made to their social media sites;
      • Lawyers may counsel clients to publish truthful information on social media that is favorable to the clients’ legal position;
      • Rule 3.4(a)(4) prohibits a lawyer from participating in the publication of false information on social media.

As for counsel made aware of relevant online postings, the prudent litigator should be aware that the failure to preserve relevant documents can result in a spoliation sanction and or monetary damages. In New York the duty to preserve arises when a client receives notice of litigation or a claim or cause of action and when a client reasonably anticipates litigation or knew or should have known that information may be relevant to a future litigation. Additionally, this requirement kicks in when there is service by defendant of demand to maintain social media. [5]

The above ethical considerations apply to both sides of the litigation. A recent and relevant case demonstrates the interaction of the above principles.

Gatto v. United Air Lines, Inc., No. 10-cv-1090-ES-SCM, 2013 WL 1285285 (D.N.J. Mar. 25, 2013), the court, in a personal injury action, imposed spoliation sanctions for Plaintiff’s failure to preserve his Facebook account..

As to the question of spoliation and more specifically the possibility of imposing an adverse inference, the court turned to the relevant four-factor analysis ((1) the evidence was within the party’s control; (2) there was an actual suppression or withholding of evidence; (3) the evidence was [sic] destroyed or withheld was relevant to the claims or defenses; and (4) it was reasonably foreseeable that the evidence would be discoverable) and indicated that factors 1, 3, and 4 were “clearly” satisfied.  Thus, the court focused on the question of whether there was “actual suppression or withholding of evidence.”  Notably, as to the question of forseeability (factor 4), the court pointed out that Defendants had requested Plaintiff’s Facebook information nearly five months before it was deactivated and that Plaintiff had been ordered to sign the Facebook authorization during a December 1 settlement conference; Plaintiff deactivated his account on December 16. Facebook then deleted the information two weeks later.

“The court [was] not persuaded by Plaintiff’s arguments regarding whether the evidence at issue was intentionally suppressed,” and found that a spoliation inference was appropriate.  First, the court cited Mosaid Techs. v. Samsung Elecs., 348 F. Supp. 2d 332 (D.N.J. 2004) for the premise that “so long as the evidence is relevant, the ‘offending party’s culpability is largely irrelevant,’ as it cannot be denied that the opposing party has been prejudiced.”  The court then reasoned that even if Plaintiff did not intend to deprive Defendants of relevant evidence, there was no dispute that Plaintiff intentionally deactivated the account and further reasoned that Plaintiff’s failure to reactivate the account in a timely manner resulted in the account’s permanent deletion.  Moreover, no explanation, including that defense counsel had inappropriately accessed the account or that Plaintiff had attempted to reactivate it “negate the fact that Plaintiff failed to preserve relevant evidence.”  As a result, Defendants were prejudiced and sanctions were warranted. Accordingly, the court imposed an adverse inference, but declined to impose monetary sanctions.

The issue of social media and the access to same is only in its infancy. The prudent litigator will begin the online investigation and evaluation of a potential litigant prior to actually demanding an authorization to obtain access to a specific social media site. Once the litigation has begun, a litigator must counsel his client to preserve all relevant postings to avoid spoliation, in addition to a monetary sanction.

[1] FINDLAW Survey July 24, 2013