Don’t Delete that Photo! – Social Media Investigations and Predatory Friending

Ms. Attorney is sitting at her desk trudging through onerous discovery requests when an urgent email comes in from her paralegal: “Check out what our client posted to Facebook – SCANDALOUS!”

Indeed, it is. The client, a defendant in an automobile accident lawsuit claiming punitive damages for intoxication, has posted to his Facebook page a photograph of himself driving a dune buggy while chugging a beer and giving the camera the middle finger. We all know what Ms. Attorney would like to say to her client regarding his lack of discretion. But we say, “Don’t Delete that Photo!”

In the clash between the fast-growing world of social media and the plodding evolution of the law, we are faced with the application of old rules to new technology. What may seem like a sound response to protect a
client’s online presence might nevertheless be disapproved of and even sanctioned by a court firmly rooted in centuries-old jurisprudence.

Lesson One: Advising Your Client
We all know relevant correspondence and photographs may be evidence in a lawsuit and must be protected from destruction. This common understanding gets stretched thin when applied to the relatively new communication platforms of the internet in general and social media in particular. Just like setting fire to film negatives constitutes spoliation of evidence, so too can evidence be deliberately destroyed by clicking the delete button on your computer. The latter is much easier but establishes penalties just as severe as the former. Accordingly, attorneys must counsel their clients in social media best practices.

Don’t dare tell your client to delete incriminating photographs already posted to their social media pages. In Allied Concrete Co. v. Lester, 736 S.E. 2d 699 (Va. 2013), the Virginia Supreme Court addressed spoliation of social media evidence in a wrongful death case wherein the plaintiff played games with his Facebook account. Counsel received a discovery request attaching a picture from the plaintiff’s Facebook page in which he was holding a beer and wearing a t-shirt proclaiming, “I ♥ Hot Moms!” Tending not to help plaintiff, who was supposed to be mourning the death of his wife, the attorney instructed his paralegal to tell the plaintiff to clean up his page and delete various photographs.

The plaintiff followed his attorney’s instructions and the court ordered him to pay $180,000 in sanctions. The attorney, on the other hand, was on the hook for $542,000 to reimburse his opponents for their investigation of the deleted evidence, including subpoenas to Facebook and retention of experts to determine what evidence was deleted. To add insult to injury, the jury was instructed to assume whatever the plaintiff deleted was damaging to his case.

Still thinking about telling your clients to scrub their social media sites? Instead, advise them to secure their profiles as best they can by availing themselves of restrictive privacy settings. This instruction should be made at the earliest possible moment to avoid your client’s “I ♥ Hot Moms!” tendencies becoming common knowledge amongst your opponents. If they have no idea such incriminating photographs exist, they won’t know if or how to request them in formal discovery. Unlike the ill-fated advice of the Virginia lawyer, establishing privacy settings doesnot destroy evidence, but simply makes such evidence more difficult for your adversaries to locate moving forward. Likewise, advise your clients to be reasonable and careful in what they post on social media sites in the future, at least as long as litigation is pending.

Lesson Two: Predatory Friending
We know what you’re thinking: “I’m going to send a friend request to my opponent and then gather all their dirt to torpedo their case!” Well, not quite. This evil lurks in social media waters, and it is called Predatory Friending.

Per California Rule of Professional Conduct 2-100(A) “While representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer.” Whether it is the lawyer herself, her paralegal, a claims representative or an investigator, contacting a represented party is prohibited, including a seemingly innocuous friend request on Facebook. The San Diego County Bar Association issued Legal Ethics Opinion 2011-2 specifically advising a friend request is an impermissible attempt to gain information for use in litigation.

Lesson Three: Crafting a Discovery Plan
If you can’t be your opponent’s friend, how do you get that “I ♥ Hot Moms!” photo?! Be quick and hope opposing counsel didn’t read Lesson One. With loose privacy settings, a litigant can leave a lot of information available for public consumption, including incriminating photographs and communications. That public information is fair game for use as impeachment or drafting discovery requests for additional documents. It is critical to preserve the evidence by way of a screenshot or simple printing before your opponent realizes such information is floating around unprotected.

As discussed in O’Grady v. Sup. Ct. (2006) 139 Cal.App.4th 1423, the Stored Communications Act (18 U.S.C. § 2702) renders unenforceable civil litigation subpoenas to internet service providers for information regarding their users. This means Facebook and other social media providers can refuse to comply with a civil subpoena requesting user data. Instead, parties must seek such information directly from their opponents, who are going to do everything in their power to avoid disclosure.

Propound specially prepared interrogatories seeking the user name and password of sites with information known to be relevant to the issues in your lawsuit, which is similar to requesting a HIPAA authorization to obtain medical records. Propound requests for production sufficiently particular to call for communications and photographs germane to the litigation, which fall within the definition of “writings” under Evidence Code Section 250.

These proposed methods of discovery may bear fruit or simply frustration, but in either scenario you will pressure your opponents and leverage your grasp of evolving technologies to the advantage of your client. By the time the law catches up with social media, social media will be dead and new hurdles for discovery and impeachment will emerge. Until then, now is the time to review the social media presence of your opponents and your clients. While you’re at it, you might want to check your own.

ABOUT THE AUTHOR: Dan Fallon specializes in civil litigation in the areas of professional liability. He has significant experience executing litigation strategies to the benefit of his individual and corporate clients. Contact Dan at 858.263.4132 or dfallon@tysonmendes.com.

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