I’ve written before about social media and how these platforms can impact litigation strategies and outcomes. E-mail, texts, Facebook posts, Twitter posts, YouTube videos – these medium are now mainstream methods of communication. Facebook claims it has over 800 million users. Twitter claims its users post over 150 million tweets per day. YouTube claims it uploads more video content each day than the three major networks have created in the last 60 years. Law firms now hire employees whose only job is to find out what the other side is positing on the web. Yet, people still maintain a false sense of privacy when posting to a site or texting a friend or co- worker. Courts have been taking notice.
Social media posts are discoverable in litigation and the information contained in the posts can constitute evidence. As such, the evidence can be the subject of a spoliation motion if destroyed or altered. Last year, a Virginia lawyer agreed to a five year suspension of his law license over a controversy in which he told his client to “clean up” his Facebook page. The client lost his wife in a trucking accident. Following her death, the client posted pictures of himself holding a beer and wearing a t-shirt that said “I love hot moms.” Lawyers for the defendants found the picture after it was deleted. The lawyer and client were sanctioned $722,000.00 for violating ethics rules that govern candor toward the court, fairness to the opposing party and counsel, and misconduct.
In March 2014, a Nevada federal judge held that a dental assistant’s deletion of Facebook posts and texts warranted sanctions. Heather Painter sued her employer Atwood Urgent Dental Care for constructive discharge and emotional distress damages, alleging that her boss climbed on top of her with his pants undone and held her down. Dr. Atwood claimed that the sexual nature of his relationship with Painter was consensual. Following the incident, Painter deleted texts, and after retaining counsel, Painter deleted Facebook posts in which she praised her employer and her relationship with Dr. Atwood, the same man against whom she made her allegations of sexual misconduct.
The Court awarded sanctions against Painter. It ruled, first, that the posts in which she praised her employer were relevant because they contradicted her legal claims. Painter intentionally deleted those posts, the Court concluded, at a time when she already contemplated litigation. However, the judge declined to dismiss her Complaint as too harsh a sanction: Painter, it concluded, deleted the texts before contemplating litigation and copies of the deleted posts had actually been saved by defendants. Critically for we lawyers, the Judge’s Order stated: “Once plaintiff retained counsel, her counsel should have informed her of her duty to preserve evidence and, further, explained to plaintiff the full extent of that obligation.
”Lawyers have a duty to explain to clients the obligation to preserve evidence once litigation is contemplated. The growing surge in popularity of various social media platforms heightens this obligation. Lawyers must understand how clients use and interact with social media; inform their clients how these communications can impact litigation; what must be done to preserve these communications; and the perils of failing to do so. Moreover, we must consider what can and should be done to discover what the opponents are doing (or not doing) with their own communications.