A recent case in Florida asks the interesting question: can a client “clean up” their social media pages before litigation is filed to remove embarrassing information? The case centered on four different scenarios. First, if pre-litigation, can a lawyer advise a client to remove posts, photos, or information from social media that are related directly to the incident for which the lawyer is retained? Second, if pre-litigation, can the lawyer advise a client to remove posts, photos, or information from social media that are not related directly to the incident for which the lawyer is retained? Third, if pre-litigation, may a lawyer advise a client to change social media privacy settings to remove the pages from public view, and fourth, if pre-litigation, must a lawyer advise a client not to remove posts, photos or information whether or not directly related to the litigation if the lawyer has advised the client to set privacy settings to not allow public access?
The case really centered upon whether the attorney was advising the client to unlawfully obstruct the other party’s access to evidence that was relevant to the pending proceeding. Clearly, neither the lawyer nor the client can destroy or conceal relevant materials. What is relevant, however, requires a factual, case-by-case determination. In Florida, the second District Court of Appeal has determined that normal discovery principles apply to social media, and that information sought to be discovered from social media must be “(1) relevant to the case’s subject matter, and (2) admissible in court or reasonably calculated to lead to evidence that is admissible in court.”
Other jurisdictions have fined clients and lawyers for deleting photos from a client’s social media page. New York has an opinion which states that lawyers may advise their clients to use the highest level of privacy settings on their social media pages and may advise clients to remove information from social media pages unless the lawyer has a duty to preserve information under law. Pennsylvania has an opinion where an attorney may advise a client to change the privacy settings on the client’s social media page but may not instruct client to destroy any relevant content on the page.
What you should take from this is pretty simple: be careful what you put on social media. It may come back to haunt you. It is being used by colleges when deciding whether to accept students, and companies routinely review social media when determining whether to hire someone. Not surprisingly, it is being used in the legal arena also. Unlike old fashion photographs, once on-line, a picture lasts forever.
Thank you,
Michael K. Gillis, Esq.
GILLIS & BIKOFSKY, P.C.
1150 Walnut Street
Newton, MA 02461
Phone: 617-244-4300
Fax: 617-964-0862
E-mail: mgillis@gillisandbikofsky.com