Social Media: To Post or Not to Post-That is the Question
By Laura Berlowe-Heinish, Esq.
All areas of the law are evolving quickly with regard to the use of social media, be it with regard to tort law, commercial law, criminal law, or family law. It is therefore incumbent upon attorneys to be aware of current trends in social media decisions in the courts and incumbent upon litigants to remain in compliance with regard to matters of discovery and to act accordingly with regard to guarding their privacy and that of their loved ones.
On October 16, 2015, The Florida Bar Board of Governors approved a non-binding ethics opinion, Opinion 14-1 dated June 24, 2015. The opinion addresses The Florida Bar’s position on advice regarding the “cleaning up” of a client’s social media pages prior to litigation or the changing of privacy settings to block certain individuals who may be involved in the impending litigation. Such advice may seem wise at first glance, but it is not a simple issue of erasing and making a clean slate. Rather, the elimination or modification of such postings raises issues regarding complex rules and substantive law on the issues of preservation and spoliation of Ultimately, The Florida Bar has advised that a lawyer may instruct a client in pre-litigation to change his privacy settings on social media pages to prevent public accessibility.
Moreover, it has advised that so long as the actions do not result in a violation of law or rule, a lawyer may also instruct a client to remove information relevant to a foreseeable proceeding from social media pages, so long as the information is preserved.
Initially, The Bar looked to Florida Bar Rule 4-3.4(a) which requires that a lawyer not take action that obstructs another party’s access to evidence or unlawfully alters, destroys, or conceals material relevant to a pending, or “reasonably foreseeable,” proceeding. It then examined recent appellate authority on the discoverability of social media pages. In Root v. Balfour Beatty Construction, Inc., 132 So.3d 867, 869-70 (Fla. 2d DCA 2014), the appellate court determined that to be discoverable, social media must be, “(1) relevant to the case’s subject matter, and (2) admissible1 in court or reasonably calculated to lead to evidence that is admissible in court.” Because Florida Bar rules take the same position as to obstruction to access whether the obstruction occurs during litigation or prior to a reasonably foreseeable proceeding, the Florida Bar based this opinion upon a review of recent appellate decisions under circumstances where various sanctions were ordered due to the obstruction of social media discovery during litigation as a result of permanent deletion of a social media account. In those cases the sanctions ranged from adverse inference instructions2 to the jury all the way to combined monetary sanctions in the amount of approximately three-quarters of a million dollars.
The key information to be garnered from this opinion is that preservation of the social media page in its original, pre-modification format is essential. This material should be carefully preserved and provided to your counsel before any change is made. Moreover, to the extent possible, it should be preserved both in hard copy and on your computer. After that, modification and removal is permissible under current law.
1 Admissible evidence is evidence that may be received in court to aid the trier of fact, whether a jury or judge, in deciding the merits of controversy. Rules of evidence determine whether a piece of evidence is admissible or should be excluded. These rules may be based on issues involving the reliability of a piece of evidence given the source or by reason of a piece of evidence being more prejudicial than it is probative of the issues at hand.
2 An adverse inference instruction is an instruction to the trier of fact that he may draw an inference that a missing piece of evidence would have been adverse to the party who lost or destroyed it. Such an instruction can be devastating to that party’s case.