At the end of January this year, the Professional Ethics Committee of the Florida Bar issued a Proposed Advisory Opinion (14-1), in which they stated “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.”
This is a dynamic finding in the midst of controversy regarding the preservation of content on social media and its effect on opposing counsel. Before litigation commences, absent of any other preservation obligation, a lawyer may advise a client to both remove information from their social media accounts and change privacy settings from public to private – as long as the client retains their own record of deleted content.
The Committee specified, however, this is applicable only “as long as the removal does not violate any substantive law regarding preservation and/or Spoliation of evidence,” and so should only be utilized with a high degree of care, and should still be aware of the duty to preserve content.
This opinion follows a new trend, in contrast with one of the more costly spoliation sanctions of Allied Concrete v Lester, as the Committee addressed instances in New York, Pennsylvania, North Carolina and Philadelphia that lawyers have a certain amount of discretionary leeway to remove or modify content from their social media accounts – as long as there is no duty to preserve it.
“What 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.”
The Opinion stated that where a lawyer attempts to advise a client to take such actions, “an appropriate record of the social media information or data must be preserved if the information or data is known by the lawyer or reasonably should be known by the lawyer to be relevant to the reasonably foreseeable proceeding.”
Lawyers have a keen responsibility in advising clients about the dangers of editing, modifying or deleting potential evidence from social media or even content likely to be subject to a request of Discovery from the opposing counsel, as social media is increasingly being used as an essential resource in discovery proceedings. Recent cases such as the aforementioned Allied Concrete v Lester, highlight this high-risk, slippery slope of eDiscovery matters. In this case, a lawyer was sanctioned $542,000 for advising a client to “clean up” his social media account by way of deleting certain photographs, and his client sanctioned $180,000 for complying and these actions amounting to spoliation of evidence.
In short; “Florida attorneys can advise their clients to take dirty laundry off the clothesline, but not to burn it.” There is undoubtedly a duty –not- to disregard content placed on social media as potentially integral to litigation proceedings, and all due care should be taken to preserve this content.
This is how WebPreserver provides an essential tool for lawyers; not only easily preserving a client or opposing parties social media content, but providing the instant added protection of ensuring it will be accepted as admissible evidence in court due to the features of timestamp and e-signature.
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