Technology Insights: Practically and Ethically Preserving Internet and Social Media Evidence

James M. Dedman, IV

The Inside Scoop • Published by the Corporate Counsel Section of the North Carolina Bar Association • Vol. 29, No. 2 • January 2017

Over a decade ago, lawyers first discovered the internet’s hidden gems which might aid them in the defense of claims brought against their clients. These days, it’s rare for a seminar or conference to be without a session on search engine techniques or war stories relating to such finds. These days, the notion that lawyers should employ such searches in their cases is now both conventional wisdom and common sense. However, as law departments and their outside counsel have become more adept at locating online evidence, state bars and local bars have begun to offer guidance on the ethics of such things. Accordingly, although the conferences and seminars continue to focus on the quest for impeachment material, lawyers should also consider the ethics of their searches and strategies to prevent an opposing party’s spoilation of such evidence.

Familiarity with technology is now a must. Generally, “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology . . . .” See ABA Model Rule of Prof’l Conduct 1.1, cmt. North Carolina has applied this requirement to social media specifically, noting that competent representation includes knowledge of social media. See N.C. 2014 Formal Ethics Opinion 5. So, law departments, their outside counsel and the firms filing suit against them should know these issues well.

In mid-2015, the North Carolina State Bar offered rather specific guidance on a number of these issues. First, an attorney must be mindful of his or her client’s actions on social media and the effect on the litigation.  See N.C. 2014 Formal Ethics Opinion 5. “If the client’s postings could be relevant and material to the client’s legal matter, competent representation includes advising the client of the legal ramifications of existing postings, future postings, and third party comments.” See id. “If removing 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.” See id. Finally, a lawyer may instruct a client to change the security or privacy settings of a social media account “if doing so is not a violation of law or court order.” See id. Although this guidance may be required more of attorneys representing individual claimants, law departments should also consider how it might affect evidence arising in the defense of claims.

With respect to a law department’s opposing counsel, Plaintiff ’s lawyers generally cannot advise their clients to delete or destroy social media evidence. But practically, what does that mean for law departments and outside counsel? When a new claim or lawsuit arises, the law department or outside counsel should employ the various Internet and social media searches they always do. If potential impeachment material or other relevant evidence surfaces, the next step depends on a number of factors. If a claimant’s social media accounts are discovered, but they are already set to private, the law department or outside counsel should capture and preserve what little is visible to the general public. A number of state bar ethical opinions from across the country prohibit attempts to access private material or send a friend request to a represented party, as such would be an impermissible ex parte contact.

If the matter is already in litigation, or even if it is not yet in litigation, the attorney should consider whether to send a digital evidence preservation letter to the claimant’s attorney warning of the consequences of the destruction of such evidence. Although this approach may tip off the opposing party to one’s knowledge of the potential for such evidence, it issues a stern warning not to destroy the potential evidence to which outside counsel does not yet have access. (It’s always helpful to reference and enclose a copy of the aforementioned N.C. Formal Ethics Opinion, as well). Then, using the various discovery tools available in litigation, outside counsel can attempt to discover relevant postings, photographs, and other relevant evidence. Note that the days of obtaining full social media profiles from an opposing party may have ended, as court’s are becoming very reluctant to produce years worth of unrelated posts and data which may predate the events being litigated by many years. Requests to admit can also be used to establish whether any such data has been deleted. Subpoenas sent to the platforms themselves typically yield costly, unhelpful responses (although any litigant seeking to issue such subpoenas should review Alabama attorney Keith Lee’s Social Media Subpoena Guide, available at no cost online on his blog and website, Associate’s Mind).

That said, to the extent that impeachment material, photographs, and other relevant evidence is publicly available, the law department or its outside counsel should capture and preserve it at the earliest stage. (Remember: Don’t just take screenshots; be certain also to download image files by right clicking and saving them to your desktop to capture the image in full.). In so doing, counsel guards against the possibility of losing access to the publicly available digital evidence at a later stage of the dispute (and allow themselves to build a record that publicly available evidence once existed if there is later a dispute about whether such evidence did, in fact, exist). If an opposing litigant does delete relevant evidence, counsel will need to be able to establish that it once existed in any discovery motion arising from the spoliation.

As technology rapidly changes, local and state bar associations attempt to keep up but sometimes lag behind. As such, law departments and their outside counsel should review the latest ethical guidelines coming from the state and local bars relating to these issues (especially if the corporate client operates in multiple jurisdictions).