Social media has changed considerably over the past several years. Newer forms of media—from messaging applications to digital assistants—are raising a number of ethical and practical issues that counsel must address in litigation. One of the primary issues on this front is ensuring that relevant social media content is properly preserved.
The dynamic nature of social media—particularly messaging application content—can present a discovery quagmire even for experienced practitioners. Understanding the parameters of legal and ethical rules, together with practical solutions on the issues, can help counsel better advise clients on how to properly preserve social media for discovery purposes.
The Duty to Preserve Relevant Social Media
Clients have a common law duty to preserve relevant evidence including social media, while lawyers have an obligation to inform clients of that duty. Counsel must also help clients take reasonable steps to ensure relevant evidence is preserved.
While these duties have been memorialized in case law, there are independent ethics rules that address counsel’s obligations in this regard. For example, Model Rule of Professional Conduct 3.4(a) forbids lawyers from destroying or obstructing access to evidence or counseling others to do similarly. In addition, Model Rule of Professional Conduct 3.3(a) proscribes counsel from either making or failing to correct “a false statement of material fact or law” made to a court.
These rules and others were invoked by the Virginia State Bar in Lester v. Allied Concrete to punish a lawyer who advised his client to destroy certain pictures on his Facebook account. Counsel was suspended for five years from the practice of law for violating “ethics rules that govern candor toward the tribunal [and] fairness to opposing party and counsel.”
The Lester matter is well known among discovery practitioners and generally stands for the proposition that counsel must advise clients to preserve relevant social media content and other information or face harsh discipline.
Practical Solutions for Social Media Preservation
Most lawyers observe the rules of ethics and need not fear Lester-like repercussions. Nevertheless, they must still deal with the practical difficulties of preserving social media.
Clients use an increasing number of messaging applications and other social media whose retention features are as diverse as the content they share. Trying to identify which applications may house relevant content may be challenging unless counsel has a thorough grasp of social media and has developed a robust litigation hold process to ensure relevant information does not slip through the cracks.
Social media proliferation may also be addressed by the application of proportionality standards. As The Sedona Conference emphasized in the third edition of its Commentary on Proportionality in Electronic Discovery(Commentary), the scope of discovery is “not unlimited.”
Instead of seeking to identify and preserve every possible relevant message or post from a client’s social media accounts, lawyers should do as the Commentary suggests and “focus on the needs of the case.” This means dialoging with litigation adversaries to more readily ensure that relevant social media content is “obtained from the most convenient, least burdensome, and least expensive sources.”
By cooperatively seeking to isolate high-value content from marginally relevant information, counsel can help alleviate preservation and production burdens associated with social media.
Another preservation challenge lies with the dynamic nature of social media content. This is particularly the case with social messaging applications (like WhatsApp and Snapchat) whose content may be modified or destroyed shortly after being sent or received.
Once the duty to preserve ripens, lawyers should act quickly to preserve such content. For larger matters, they should consider engaging the help of trusted experts who have technological and practical experience to help address the issues.
In smaller matters where cost issues predominate, counsel may instead opt for a DIY option. Certain sites enable users to download their social media history, which can then be reviewed for relevance.
Preservation Is Only the Beginning
Social media preservation is an important matter. And yet, it is just one of several issues counsel must take into account when addressing discovery of social media.
A vigorous discussion of these issues will take place at Relativity Fest 2017 during the e-Discovery and Ethical Considerations for Social Media session. Join us for this session and share your views on the issues.
Philip Favro brings more than 15 years of experience to his position as a discovery and information governance consultant for Driven, Inc. Phil is a thought leader and a legal scholar on issues relating to the discovery process, the confluence of litigation and technology, and information governance. Phil also serves as the director of legal education for the Coalition of Technology Resources for Lawyers (CTRL) where he directs CTRL’s thought leadership programs.