Lawyer’s Duty to Preserve Social Media Evidence

By Hayes Hunt and Jeffrey Monhait

computer_187672427.jpgLawyers must take “appropriate” steps to preserve their clients’ potentially relevant and discoverable social media evidence. That is the key take-away from an ethics opinion recently issued by the Philadelphia Bar Association. However, lawyers may advise a client to restrict access to the client’s social media so long as the attorney neither instructs nor permits the client to permanently destroy that information.  An attorney may even instruct a client to delete information from the client’s page if the attorney preserves that information, including meta data

You Can Hide, But You Must Preserve

Changing social media settings to “private” merely restricts who may access a web page.  The opposing party can still access relevant and discoverable information through discovery or by issuing a subpoena.  The committee concluded that this position satisfied Rule 3.4’s prohibition against altering or destroying evidence.  As long as the attorney preserves the complete evidentiary record, including meta data, an attorney may advise a client to restrict access to the client’s social media evidence, or remove social media content entirely. 

shoeprint.jpgYou “Must” Produce Complete Social Media Content

To comply with discovery requests, a lawyer “must” produce the client’s complete social media content if the attorney is aware of this content’s existence. This duty arises from Rule 4.1, which prohibits attorneys from making “a false statement of material fact or law to a third person,” and Rule 8.4, which prohibits “conduct involving dishonesty, fraud, deceit, or misrepresentation.” A lawyer that purposefully omits portions of social media content, or permits or directs the client to destroy social media content, violates these rules.

Also, a lawyer must take reasonable steps to obtain relevant information from the client when the lawyer “reasonably believes” that the client possesses relevant information, such as photographs, links, or other social media content. Despite being obligated to take reasonable steps, a lawyer need not obtain information that was neither in the client’s possession nor the lawyer’s possession.

Frankly, this isn’t groundbreaking or a new duty, it merely reinforces the need for lawyers to better understand social media for purposes of litigation.

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  1. […] guide last summer dealing with social media and spoliation. (Hat tip to Hayes Hunt’s “From the Sidebar” blog for a great post on […]

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About the Editor
Hayes Hunt concentrates his practice in the representation of individuals, corporations and executives in a wide variety of federal and state criminal law and regulatory enforcement matters as well as complex civil litigation. Hayes is a partner in the firm's Commercial Litigation Department as well as its Criminal Defense and Governmental Investigations Group.
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