Spoliation and Social Media
August 22, 2017
We have received a lot of questions about whether an attorney may advise his or her client to delete Facebook posts or Tweets in anticipation of filing a lawsuit, or even during the course of litigation. North Carolina Rule of Professional Conduct 3.4 prohibits a lawyer from obstructing another party’s access to evidence, and Rule of Professional Conduct 1.2 prohibits a lawyer from counseling or assisting a client in conduct that the lawyer knows is criminal or fraudulent. So, would deleting the social media posts constitute a violation of these rules? The answer is a resounding “it depends.”
The North Carolina State Bar issued a formal opinion on this question, stating that the attorney “should examine the law on preservation of information, spoliation of evidence, and obstruction of justice to determine whether removing existing postings would be a violation of the law.” (2014 Formal Ethics Opinion 5). Therefore, the attorney must look to case law for guidance on whether removal of a client’s posting will constitute spoliation of evidence, and each potential removal may need to be examined on a case-by-case basis.
The North Carolina State Bar has determined that as long as the removal of postings “does not constitute spoliation and is not otherwise illegal, or the removal is done in compliance with the rules and law on preservation and spoliation of evidence, the lawyer may instruct the client to remove existing postings on social media.” (2014 Formal Ethics Opinion 5). Importantly, the State Bar stated that for purposes of preservation, “the lawyer may take possession of printed or digital images of the client’s postings.” (Id.)
However, even where an attorney determines that removal of a client’s social media postings would not violate the Rules of Professional Conduct or other laws, the lawyer may still want to consider the practical implications of advising a client to remove social media posts and the impact such deletion may have on his or her client’s case. Sharp opposing counsel will likely ask a deponent about his or her social media accounts, whether any posts were deleted, and—you guessed it—for detailed explanations of the exact content of what was deleted. Arguments may ensue about whether the deleted postings are relevant to the case, but the inference of having deleted the postings could be prejudicial (perhaps even more prejudicial than the content of the postings themselves), and could potentially cause lasting damage to the case.
As an alternative to deleting social media postings, lawyers may want to advise clients facing potential litigation to adjust the security and privacy settings on social media pages to the highest level of restricted access. Again, it is the attorney’s responsibility to determine whether restricting access would violate any laws or court orders. (2014 Formal Ethics Opinion 5). Although adjusting the security and privacy settings would not prevent discovery of social media postings through traditional methods (such as requests for production of documents pursuant to Rule 34 of the North Carolina Rules of Civil Procedure), it could provide counsel an opportunity to object to production of such posts on the grounds of relevancy, or at the very least, limit the opportunity for opposing counsel to examine your client’s social media pages as an “open book.”