The use of social media is pervasive throughout our society. With that pervasiveness spring novel considerations beginning the moment one enters litigation. This is especially true given the ease with which information contained in social media may be altered or deleted entirely. As such, allegations of spoliation extend beyond the all-too-familiar scenario of a client shredding paper in the dead of night and, instead, now encompass a single click of the “Delete” button on the client’s keyboard.
At the outset of litigation, attorneys should protect their clients and themselves by first inquiring into their client’s use of social media. Attorneys should then advise their clients to avoid posting material that concerns his or her case. What specifically concerns a client’s case, however, can be quite broad and subjective. Thus, attorneys may be prudent in advising their client to forego social media activity altogether during the pendency of litigation.
In order to fully and timely apprise one’s client of his or her responsibilities regarding social media in litigation, attorneys should broach this subject in the initial meeting with their client. In addition to advising their client to avoid deleting content within his or her social media, attorneys should advise their client to alter his or her privacy settings in order to restrict the accessibility of information that would otherwise be freely available to the watchful eyes of opposing counsel and their clients. However, attorneys should emphasize that the entirety of the client’s social media content must be preserved, including external and internal messages. Lastly, attorneys should memorialize their client’s understanding of his or her social media responsibilities by having their client review and execute a document detailing the advice above.
While social media is widely discoverable under existing ethical rules and rules of evidence, its implications are much less widely understood. As such, in order to protect both their clients and themselves, prudent attorneys should address their clients’ social media use promptly and proactively at the outset of litigation.
Jordan T. Steiner
Associate, Kohnen & Patton LLP