Social Media Discovery and Preservation of Evidence
Social media sites are evidentiary tools that can be used by defense counsel to negatively impact your clients’ personal injury claim. Clients are frequently subject to intrusive discovery requests and with social media becoming commonplace these discovery requests often seek access to social media accounts.
The basic rules of discovery apply. “Discovery in civil cases must be relevant to the subject matter of the case, and must be admissible or reasonably calculated to lead to admissible evidence.” Brooks v. Owens, 97 So.2d 693, 699 (Fla.1957); see also Amente v. Newman, 653 So.2d 1030 (Fla.1995) (concept of relevancy is broader in discovery context than in trial context, and party may be permitted to discover relevant evidence that would be inadmissible at trial if it may lead to discovery of relevant evidence); Krypton Broadcasting of Jacksonville, Inc. v. MGM-Pathe Communications Co., 629 So.2d 852, 854 (Fla. 1st DCA 1993) (“It is axiomatic that information sought in discovery must relate to the issues involved in the litigation, as framed in all pleadings.”); Fla. R. Civ. P. 1.280(b)(1) (discovery must be relevant to the subject matter of the pending action).” Alterra Healthcare Corp. v. Estate of Shelley, 827 So. 2d 936, 944-45 (Fla. 2002).
For instance, if you have a wrongful death case, defense counsel may seek discovery of social media in order to discredit your clients’ pain and suffering. Often times the language of a post or photo is taken out of context, but blown up to the size of a movie screen, it can still make your client look insensitive to a jury.
When I sit down with a potential new client one of the first things we ask is, “Do you have any social media accounts?” Most often the answer is yes. Facebook, Twitter, Instagram, MySpace, Reddit, Flikr, etc… anywhere a client can post information relating to or concerning their case. Sometimes it is necessary to look at their social media accounts to get a better understanding of what they have or have not posted.
In an automobile negligence case, a client whom is not seriously injured will often have already taken photos on their smartphone prior to seeking out an attorney and sometimes have already posted an image of the wreck or statements about their injuries onto social media. This is where attorneys often falter. Do you advise your client to remove this information or do you preserve the evidence? The simple answer is to err on the side of caution and preserve the evidence.
The Florida Bar Professional Ethics Committee has not yet released their formal advisory opinion. The main issue is a lawyer’s duty under Florida Bar Rule 4-3.4(a), which says that, “A lawyer must not unlawfully obstruct another party’s access to evidence or otherwise alter, destroy, or conceal a document or other material that the lawyer knows or reasonably should know is relevant to a pending or a reasonably foreseeable proceeding; nor counsel or assist another person to do any such act . . . .” Gary Blankenship, Professional Ethics Committee considers social media, The Florida Bar (July 15, 2014), http://www.floridabar.org/DIVCOM/JN/jnnews01.nsf/8c9f13012b96736985256aa900624829/6012e2c38d7a970485257d0e00456972!OpenDocument.
An attorney could potentially be sanctioned for instructing a client to remove information from their social media account. Lester v. Allied Concrete Co., No. CL08-150 (Va. Cir. Ct. Sept. 01, 2011), aff’d, No. 120074 (Va. Ct. App. Jan. 10, 2013). Instead of removing information retroactively, tell your client to keep the information on the social media site or at the very least download their information or archive their account prior to removal. Just remind your clients: for future usage of social media think before you post.