Social Media Evidence: From Preservation to Authentication
The Bencher—November/December 2019
By Molly DiBianca, Esquire
Social media evidence is everywhere and in every court. From the divorce case in which one spouse’s changed Facebook status from “single” to “in a relationship” was a factor in the reduction of alimony payments, to the intellectual property case in which the plaintiff asserted claims for trademark infringement based on the defendant’s allegedly infringing logo, which could be found on the defendant’s Facebook page, social media evidence is ubiquitous and unavoidable. Although lawyers may be inclined to shy away from social media out of fear of the unknown, our ethical obligations require us to deal with social media evidence head-on. This article lays out the basics for the preservation, collection, production, authentication, and introduction of social media evidence.
Step One: Warn
First things first. At the outset of a new engagement, consider a warning to your new client. Lawyers who represent individuals, for example, commonly include a provision in engagement letters specifically warning clients of the risks of social media use while their case is ongoing.
But, while the engagement letter option may protect you against malpractice, it does not do much to help assist the client from harming his case with misdirected social media posts. So, help your client help himself.
Consider whether you should request that your client cease all social media activity until the case is complete. If that request seems too drastic (or your client seems unlikely to comply), consider whether you should advise your client to change his social media profiles to “private” so they are not accessible by the public. At a minimum, consider advising your client to avoid posting anything that could affect the case and to never post anything that would waive the attorney-client privilege.
Step Two: Preserve
While warning your client about the multitude of problems to avoid, it may occur to you that some problems may already exist. In other words—what exactly has your client already posted online that may be damaging to his case? Now is the time to ask.
Better to know now than when your opposing counsel asks your client on the witness stand and presents “unflattering” photos of your client for the jury to see. Sit down with your client to review his Facebook profile and see for yourself what potential issues may exist. But what happens when you find issues? Can you tell your client to delete the profile entirely? Or the pictures and posts that you worry may hurt the case?
This thought should trigger all sorts of alarm bells. The duty to preserve arises when a party reasonably foresees that evidence may be relevant to issues in litigation. All evidence in a party’s “possession, custody, or control” is subject to the duty to preserve. Evidence is considered to be within a party’s “control” when the party has the legal authority or practical ability to access it. Thus, a client has “control” of the contents of his social media account and, consequently, the duty to preserve applies.
Rule 3.4 of the Delaware Rules of Professional Conduct (the “Rules”) provides that a lawyer (and anyone acting on her behalf) shall not obstruct another party’s access to evidence or alter, destroy, or conceal potential evidence. It also expressly provides that a lawyer “shall not counsel or assist another person to do any such act.” (Del. Prof. Cond. R. 3.4(a).) On its face, Rule 3.4 seems to clearly prohibit a lawyer from advising or assisting her client from deleting content from his Facebook page.
But the answer may not be that obvious. The Florida Bar Association’s Professional Ethics Committee issued an advisory opinion on the subject, and the opinion makes clear that the issue is more nuanced. (Fla. Prof’l Ethics, Op. 14–1, June 25, 2015). If the lawyer first ensures that the evidence is preserved, the committee concluded, the attorney may instruct the client to destroy the online content. The Pennsylvania Bar Association’s Professional Guidance Committee agrees. In an earlier advisory opinion, the Pennsylvania committee concluded that an attorney may advise her client to change the privacy settings on the client’s social media page and also may instruct the client to delete the content—provided, however, that the content has already been preserved.
For good reason, the lawyer may not be comfortable with instructing a client to destroy evidence of any kind. A Virginia court imposed sanctions of $542,000 against a senior trial lawyer and $180,000 against his client when the client, at the instruction of the lawyer’s paralegal, deleted photographs from the client’s social media page. (Allied Concrete Co. v. Lester, 736 S.E.2d 699 (Va. 2013).) But in that case, the photographs had not been preserved prior to deletion.
So, if you are considering whether it would be a good idea to tell your client to delete online posts, photos, and comments, think carefully. Preserve the content, regardless of whether you decide in favor of deletion.
A final word of warning. Relevant evidence is discoverable, regardless of whether it is online, on a flash drive, or in a filing cabinet. Deletion may prove to be of limited value. If you advise a client to delete his Facebook account after you’ve downloaded it to a flash drive, you will still have to produce any content that is relevant to the case. Consequently, think hard before you take any steps to delete social media evidence.
Step Three: Discover
Discovery is the next hurdle. Many lawyers know that they should consider requesting relevant evidence from a party’s social media pages but are unsure how exactly to go about doing it. The key is to keep your requests narrowly tailored.
Unless there is a specific reason, do not ask for the entire account. You wouldn’t ask a party to produce the entire filing cabinet—only the documents within that filing cabinet that are relevant to the case. The same applies to discovery of social media—ask only for the posts, comments, photos, and other content that is relevant.
Worse than requesting the entire account is a request for the password to that account. One court explained that a party is not entitled to access a party’s account merely because there is a pending action. The court explained that, “[t]o enable a party to roam around in an adversary’s Facebook account would result in the party to gain access to a great deal of information that has nothing to do with the litigation and  cause embarrassment if viewed by persons who are not ‘Friends.’” (Trail v. Lesko, No. GD-10-017249 (Pa. C.C.P. July 3, 2012).) A federal court in Michigan went further, sanctioning a defendant who moved to compel production of the plaintiff’s Facebook password. (Chauvin v. State Farm Mut. Auto. Ins. Co., 0-cv-11735 (S.D. Mich. June 21, 2011) (affirming magistrate’s ruling).)
If you are on the receiving end of such a request, do not acquiesce. There are significant risks to accessing another person’s online accounts. For example, if the account owner later alleged that you altered or removed content while logged in, it could be extremely difficult to disprove.
In one case, the parties agreed that the plaintiff would provide his password to the defense lawyer, who, the parties had agreed, would then log in and review the account for relevant content. However, when the lawyer did get around to logging in, Facebook sent an automated message to the account holder-plaintiff alerting him of a log-in from an unrecognized device. The plaintiff, believing his account had been hacked, accidentally deleted the entire account. (Gatto v. U. Airlines, Inc., No. 10-1090-ES-SCM (D.N.J. Mar. 25, 2013)). The defendant moved for sanctions as a result of the spoliation. The court concluded that the plaintiff had failed to preserve evidence as required and granted the defendant’s request for an adverse-inference instruction.
Step Four: Collect
If you are on the receiving end of a request for “relevant” social media content, how do you go about collecting and producing that content? Many lawyers are overwhelmed by the task. But putting the burden on the client is problematic. The Court of Chancery has reiterated that “self-collection” whereby the client, and not the lawyer, manages the discovery of electronic evidence, is insufficient. (Roffe v. Eagle Rock Energy GP, No. 5258-VCL (Del. Ch. Apr. 8, 2010)).
This puts the ball back in the lawyers’ court—we are responsible for managing the collection. With Facebook content, this can be accomplished with the click of a button. The Facebook tool “Download My Info” (found in the settings of every Facebook account) enables users to download all content and a fairly significant amount of metadata from their account. It is free, takes just minutes, and delivers the entire account as a .zip file, which can be saved easily on a flash drive and maintained in the lawyer’s office. This serves not only to ensure that the content has been preserved but also enables the lawyer to review the contents for possible production without having to be logged into the client’s account.
Step Five: Produce
Admittedly, the thought of pouring through a client’s entire social media account in an effort to find the relevant posts can be daunting. If the project is too daunting, there are options. For example, you could produce the entire account on an attorney’s-eyes-only basis and allow the other side to identify what it contends should be produced. (See Thompson v. Autoliv ASP, Inc., No. 2:09-cv-01375 (D. Nev. June 20, 2012)). An appropriate protective order should be in place first, though, to ensure that the attorney may not use the information for any other purpose and to set the parameters for the attorney’s review.
Step Six: Use
You have collected the evidence and are ready to use it in court. In Delaware, the standard is clear. In Parker v. State of Delaware, the Delaware Supreme Court ruled that the standard for authentication of social media evidence is no different than any other kind of evidence (85 A.3d 682 (Del. 2014). See also Moss v. Delaware, 166 A.3d 937 (Del. 2017) (table) (extending and applying Parker to text messages).) In other words, a party seeking to introduce an Instagram post may do so using “any form of verification” available under the Rules of Evidence, which could include live testimony, corroborative evidence, or distinctive characteristics.
A Cautionary Tale
A Texas judge told me a story that truly encapsulates what not to do when it comes to social media evidence. I share it here as a cautionary tale.
The plaintiff, a young woman, alleged to have suffered significant physical injuries as a result of an automobile accident. At trial, things were going smashingly well for the plaintiff, who was represented by a prominent, highly regarded, and very successful senior lawyer. During cross-examination of the plaintiff, the defendant’s lawyer put up a photograph of the plaintiff ably zip lining over a plush jungle in Costa Rica. This, of course, could be devastating to the plaintiff’s potential recovery.
Shocked, the plaintiff’s lawyer jumped to his feet to object. But he did more than just object. He accused the defense counsel of hacking the plaintiff’s computer because “how else could he have gotten this photograph?!?” The defense lawyer, of course, had obtained the photo from the plaintiff’s publicly available Facebook page.
As the judge told it, it was at that moment that the jury’s sympathies for the plaintiff disappeared. The judge was right—the jury deliberated briefly and promptly returned a verdict for the defendant. What troubled the judge the most, though, was the plaintiff’s lawyer’s accusations in open court that defense counsel had intentionally gained unlawful access to the plaintiff’s computers—in other words, committed a crime. The judge felt that such an accusation warranted a referral to the state’s disciplinary counsel.
The lawyer could have avoided the entire disaster. He could have warned his client against leaving her profile public. He could have reviewed her posts and discovered that his client’s injuries were not, in fact, what she purported them to be. And he could have avoided the open-court outburst (and the disciplinary referral that followed).
Note: This article, reprinted with permission, was originally published in the Delaware Bar Foundation’s Spring 2018 issue of Delaware Lawyer.
Margaret (Molly) DiBianca, Esquire, is a member in the Labor and Employment Group of Clark Hill PLC. She is also the co-chair of the Delaware Commission of Law and Technology, an arm of the Delaware Supreme Court, and a member of the Richard S. Rodney American Inn of Court in Wilmington, Delaware.