With the advent of technological advances, many are beginning to wonder if “privacy” still remains. The most intimate details of a person’s life may now become public at the click of a button or with the snap of a picture. One platform that illuminates the questionable privacy of our daily lives is social media. It is not only tempting, but highly rewarding and gratifying for many to watch their “likes” increase and the number of “comments” on their posts multiply. These instant gratifications fail to warn us of their legal danger and consequences, however, and likelihood for decreasing the chances of success in the courtroom. Against this backdrop of increasing concern, it is important for legal practitioners to be aware of and prepared to resolve the ill effects of social media for their clients.
One lawyer recounted the tale of a client, who at first, appeared to have a strong case for wrongful termination against a previous employer. It was not until the courtroom that this lawyer became aware of the mistakes made by his client on social media. His client had claimed and provided sufficient evidence demonstrating that her former employer’s abusive practices significantly impacted her mental health. Upon further questioning by the opposing counsel, it was revealed that a Facebook post from this client detailed a weekend trip to a Caribbean resort all while this client “was suffering from generalized anxiety disorder, post-traumatic stress syndrome and depression.” This post, along with additional information this client failed to relay to her lawyer, served to transform a relatively strong case to a weak one.
In another case, a concrete company was sued for the wrongful death of the plaintiff’s wife after the truck rolled onto her car. The company’s discovery request included the production of the information on the plaintiff’s Facebook account. Before delivering the information on the plaintiff’s account, his attorney instructed him to remove 16 photos. After examination of the plaintiff’s IP address, it was determined that 16 photos were removed, contrary to the statements made by the plaintiff and his lawyer. In the end, the plaintiff’s lawyer was required to pay over $500,000 in reasonable expenses and attorneys fees to the defendants, for violations which included “fraudulent[ly] signed discovery responses” and dishonesty by the plaintiff’s attorney “regarding the cause of the omission.” If that was not enough, the plaintiff was instructed to pay $180,000 for following the instructions of his attorney, and the $8.6 million verdict was reduced by over $4 million due to “inappropriate conduct.”
So what are the main takeaways? It is imperative that legal practitioners do the following:
- Although the conversation may seem intrusive and/or uncomfortable, ask your client whether or not he/she has posted information to his/her social media account that could be relevant to your claim. Emphasize the importance of disclosing this information earlier, rather than later.
- Do not, by any means, instruct your client to remove information from his/her social media account after the information has been obtained through discovery. However unpleasant and problematic the information may be, it will be better for both yourself and your client if you remain honest and work to deal with problems that may arise from the distasteful information, rather than pretending that the information never existed.
- Remember your Model Rules of Professional Conduct. Be honest with your client – if the information on his/her social media account presents problems, discuss them with your client. Work through strategies and solutions for dealing with the problematic content. Both you and your client will be better for it.
Kurt Olson, The Verdict Is In: Social Media Can Cause Legal Catastrophes, Law Practice Today (Feb. 2013), http://www.americanbar.org/content/newsletter/publications/law_practice_today_home/lpt-archives/february13/the-verdict-is-in.html
Antigone Peyton and Ernest Svenson, Social Media for Litigators, Law Practice Today (June 2012), http://www.americanbar.org/publications/law_practice_today_home/law_practice_today_archive/june12/social-media-for-litigators.html