Social media discovery has become commonplace in civil litigation, as litigants explore the contents of postings by an adverse party or a witness and examine their impact on the disposition of the merits. Questions arise as to whether and when social media postings may be deleted or privacy settings may be altered.
The Florida Bar’s Professional Ethics Committee has issued a proposed opinion providing guidance to counsel when advising a client regarding the preservation or deletion of social media postings. (Proposed Op. 14-1, 1/23/15). The committee wrote that “a lawyer may advise the client pre-litigation to remove information from a social media page, regardless of its relevance to a reasonably foreseeable proceeding,” but only if “the removal does not violate any substantive law provision regarding preservation and/or spoliation of evidence.” If the lawyer advises the client that information may be removed, the lawyer must ensure that “an appropriate record” of the social media data is preserved. The Florida committee also concluded that a lawyer may advise a client to use the highest level of privacy settings on a social media page so that it is not publically accessible. The committee stressed the importance of counsel’s duties under Florida’s rules of professional conduct not to “unlawfully obstruct another party’s access to evidence” or “otherwise alter, destroy, or conceal” evidence that the lawyer knows or reasonably should know is relevant to a pending or reasonably foreseeable proceeding. As the committee warned, “[w]hat information on a social media page is relevant to reasonably foreseeable litigation is a factual question that must be determined on a case-by-case basis.”
If Florida adopts the ethical opinion, it will join several other recently published bar opinions nationwide regarding a lawyer’s professional and ethical obligations when counseling clients on the often-vexing preservation issues relating to social media. Similar opinions have been issued in New York, North Carolina, and Pennsylvania