Kaylin L. Whittingham Blog

E-Discovery in The Social Media Era

by | Jun 8, 2021 | blog | 0 comments

Social media has changed the “rules” for winning at trial. Often parties use social media to research their adversaries, witnesses, and judges.  The information discovered from such research has led to many victories, significant losses, and attorneys being disciplined.
Although attorneys may not want to disclose the content of their client’s social media activities to their adversaries, they may have no choice because to do otherwise could result in severe consequences, including discipline for violation of the Rules of Professional Conduct. Attorneys should remind their clients that information posted on their social media pages may be relevant at trial, making it discoverable.
Perhaps, during litigation, social media silence is most desirable. Since what a client does on social media during litigation may have a severe impact on the outcome of the matter. Here are classic examples of how social media can be at the centre of a legal dispute.

Painter v. Atwood, 2014 WL 1089694 (D. Nev Mar. 18, 2014)

If your client is suing their boss for sexual harassment, while it might seems like a clever idea for the client to destroy any positive references to their boss on your social media accounts that might make it appear that the sexual conduct was invited, it is a wrong move. Heather Painter learned that the hard way.
Painter’s boss, a dentist, climbed on top of her, holding her down and she sued for sexual harassment. Aaron Atwood, her boss, argued he was merely prickling and the sexual advances he made were “consensual.”
Painter went through her Facebook page and deleted posts that related to her job. The Atwood argued that Painter had earlier posted good things about her workplace and employment, which showed that it couldn’t be the awful place she now claims it to be in her suit.
Following the defendant’s request that the plaintiff be sanctioned for taking down her Facebook page, the court found that spoliation occurred and, as such, drew an adverse inference.  According to the court, “Once plaintiff retained counsel, her counsel should have informed her of her duty to preserve evidence and further explain to the plaintiff the full extent of that obligation.”

Kemp v. Trustees of Mease Hosp. Inc, No 09-013084 CI, Slip op (Fla. Cir. Ct Oct. 22, 2013)

Instead of producing the entire content of her activities on Facebook, the plaintiff produced two photos and 83 pages of computer code.  According to the court, the plaintiff knew this was not the information sought by the defendant, nor that which the court had ordered. The court found that the plaintiff intentionally destroyed relevant information and which caused prejudice to the defendant and undue expenses.  The court dismissed the plaintiff’s case with prejudice and ordered her to pay cost.

Lester v. Allied Concrete Co., Nos. Cl08-150 Cl109-223 (Va. Cir. Ct. Oct. 21, 2011)

In Lester v. Allied Concrete Co., the wrongful death plaintiff lost his young wife in a tragic accident. Yet, his Facebook page included a photo of him “clutching a beer can, wearing a T-shirt emblazoned with ‘I love hot moms’ and in the company of other young adults.
As an attorney, what can and what should you do about your client’s social media activity?  Can you advise your client to remove content or change privacy settings so opposing counsel and others cannot snoop?
Here the attorney emailed his client that “we do Not want blow-ups of other pics at trial so please, please clean up your Facebook and my space.”  The attorney was sanctioned $542 000 and reported to the Virginia State Bar for ethics violation.  Later the attorney suspended for five (5) years by the Virginia State Bar Disciplinary Board.

Romano v. Steelcase, 907 NYS2d 650 (2010)

Here, the defendant sought to discover the litigant’s “historical and current MySpace and Facebook accounts and page,” including erased information, believing that information posted there differed from her injury claims.  The court sided with the defendant (despite the petitioner’s privacy concerns) finding the information sought to be relevant and material. According to the Court, petitioner had no reasonable expectation of privacy and defendant’s need for access the information out weighted the litigant’s privacy concerns.

The bottom line

Content on a client’s social media page will be discoverable in litigation. Attorneys have an ethical obligation to clearly communicate to their clients the consequences of destroying such evidence and, likewise, warn their clients of the risks associated with over-sharing on social media.
A message to “clean up all your socials,” should never be sent from an attorney to his or her client during litigation. Once there is legal action, the message should be “please don’t delete.”