Anything you post online can and will be used against you in a court of law. Even if you delete it.
The Delete that Cost Major Dollars
Isaiah Lester lost his wife in a tragic accident. While driving down Route 53 in Charlottesville, Virginia, a 60,000 pound concrete truck sped around a bend, flipped onto Lester’s car, and killed his wife, Jessica.
A year and a half after a jury awarded the Lesters $10.6 million for Jessica’s wrongful death, the family’s verdict was cut in half when the judge sanctioned Lester and his attorney, Matt Murray, for deleting photos from Lester’s Facebook profile.
Murray told Lester to “clean up” his Facebook after receiving a discovery request from opposing counsel asking for the profile’s contents. Attached to the request was a picture of Lester drinking a beer and wearing an “I ❤ hot moms” t-shirt. Murray was a bit concerned about how that might look to the jury, so he and Lester got rid of it. The judge determined that Murray and Lester’s conduct amounted to spoliation—a.k.a. destruction of evidence—and hit them with $722,000 in sanctions.
The New Delete-and-Preserve Rule
The case sparked a lot of conversation about what legal duties we have in terms of social media. In its immediate aftermath, it seemed like the Lester case would become national precedent, and pressing delete would be a no-go, at least once litigation starts. Needless to say, this made a lot of people uneasy. No one wants to worry about an embarrassing pic leaking to the jurors deciding their fate.
But the Philadelphia Bar Association Ethics Committee took a slightly different stance in its July 2014 opinion: lawyers can tell their clients to delete potentially damaging information from their social media accounts. Caveat: they have to preserve deleted material in case it becomes relevant, discoverable evidence.
Fortunately, it seems like the nation would rather jump on board the Pennsylvania train. The Pennsylvania Bar Association recently adopted Philadelphia’s delete-and-preserve rule in its applauded formal opinion, “Ethical Obligations for Attorneys Using Social Media.” In backing up the opinion, the Pennsylvania Bar stated:
“The Rules do not prohibit an attorney from advising clients about their social networking websites. In fact, and to the contrary, a competent lawyer should advise clients about the content that they post publicly online and how it can affect a case or other legal dispute.”
Though criticized for being a little late to the conversation—and a little lengthy—it was clearly time well spent. People are praising Pennsylvania country-wide, and using the opinion to set a much more reasonable precedent.
What’s the catch?
Unfortunately, there are a couple downsides to the delete-and-preserve rule:
- Anything you delete is still discoverable evidence that can be used against you.
- Even though your opposition can only use posts that are relevant to your case, the definition of relevance is broad, and deleting them after litigation starts makes them start to look more relevant.
So what’s a litigant with a racy Instagram to do?
Think Pre-Post, Not Post-Post
In her article for ABA’s Business Law Today, attorney Margaret DiBianca suggests using privacy settings instead.
“Courts are wary about granting discovery of social media content where the requesting party has not identified some specific evidence tending to show that relevant information exists. However, a requesting party is only able to satisfy this burden if at least some part of producing party’s social media content is publicly available.”
Essentially, if your social media content is private, there’s no way to show that it’s relevant to your case.
The bottom line is, the best solution is not to have anything posted to worry about in the first place. Think about your content before you post it—and, when in doubt, imagine it on display in court.
For the best ways to preserve your social media, take a look at Margaret DiBianca’s recommendations.
Attorneys: check out this article on Bloomberg Law for risk management tips on giving social media advice.
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