The general rule is that once “a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents.” Zubulake v. UBS Warburg, 220 F.R.D. 212, 218 (2003) (Zubulake IV). Later, when subsequent depositions of the UBS Warburg witnesses disclosed that the defendant had destroyed additional emails after receiving instructions from counsel to retain all emails, the court found willful destruction of discoverable evidence and ordered an adverse inference instruction to the jury. Zubulake v. UBS Warburg, 229 F.R.D. 422 (S.D.N.Y. 2004) (Zubulake V). A jury awarded Ms. Zubulake $29 million at trial. Taken together, these decisions illustrate the need for lawyers to preserve electronic data and to instruct clients on their obligations under the discovery rules. Since 2006, Rules 26 and 34 of the Federal Rules of Civil Procedure deal specifically with the problems of preserving electronic evidence.
Social Media and Witnesses
Problems of spoliation of documents are not limited to hard copy or electronic version of documents, such as emails. They read other forms of evidence that clients, witnesses, jurors, judges and lawyers create on social media sites. We start with “friending” someone. “Friend” used to be a noun, but now it is also a verb. If you do not understand that, ask any teenager.
May a lawyer (or an investigator for the lawyer) “friend” a witness or opposing party on various social networks, such as Facebook, in an effort to discover information that is “public” to friends? Alternatively, must the lawyer use a subpoena to collect an image of the Facebook page? The touchstone in such cases should be whether the lawyer or his or her agent practices deception.
The Philadelphia Bar Association issued an Opinion that embraced a very broad view of “deception.” It advised that a lawyer could not use an agent to “friend” a witness in order to find out information on the witness’s personal page because, it announced, such a request is deceptive under that state’s version of Rule 8.4(c), of the Model Rules of Professional Conduct. The Opinion claimed that the lawyer’s action was improper even when the agent or lawyer used his or her real name, because the purpose for contacting the target was not “friendship,” but for gaining access to personal information.
This rationale reflects ignorance of how Facebook works and how the users of Facebook use the term “friend.” A Facebook “friend” is not equivalent to a real friend. I might have hundreds of Facebook “friends,” but none of them invites me to her home for Thanksgiving dinner. If two Facebook friends walked down the street and bumped into each other, they might not even recognize each other or know the name of their “friend.” “Friend” in Facebook parlance is a term of art. One does not “befriend” someone by adding that person as a Facebook “friend.”
One does not have to give a reason to be a “friend,” any more than one has to explain why one person chooses to “follow” another on Twitter. Twitter users have “followers,” but the person who is followed is not a “leader.” He or she has no Svengali-like hold on any “followers” because they are not “followers” in the 19th Century sensethat a cult leaderhasfollowers; they are merely “followers” in the 21st Century sense: they more like “watchers,” as in, “we are watching you.” If the lawyer or the lawyer’s agent makes no misrepresentation (e.g., does not use a fake name) when asking the stranger to link as a “friend,” where is the deception? If the person on Facebook (or any similar social network application) does not want to accept the invitation, he or she can simply reject it. It is not a “rejection” in the sense of one gentleman refusing another gentleman’s offer of a drink. It is not a rejection in the sense that the cheerleader rejects your request to escort her to the prom. It is simply a decision not to click the yes button. No one cries; no one gets embarrassed. In fact, you do not have to “reject.” You can just ignore.
Social Media and Parties
The New York State Bar Association’s Committee on Professional Ethics, in 2010, in Opinion 843 concluded that a lawyer representing a client in pending litigation may access the pages of another party’s social networking website (such as Facebook) for the purpose of obtaining possible impeachment material for use in the litigation, but the Opinion limited that access to the public portions of Facebook:
As long as the lawyer does not “friend” the other party or direct a third person to do so, accessing the social network pages of the party will not violate Rule 8.4 (prohibiting deceptive or misleading conduct), Rule 4.1 (prohibiting false statements of fact or law), or Rule 5.3(b)(1) (imposing responsibility on lawyers for unethical conduct by nonlawyers acting at their direction).
The New York Opinion added:
[T]he Facebook and MySpace sites the lawyer wishes to view are accessible to all members of the network. New York’s Rule 8.4 would not be implicated because the lawyer is not engaging in deception by accessing a public website that is available to anyone in the network, provided that the lawyer does not employ deception in any other way (including, for example, employing deception to become a member of the network).
Lawyers can already use Google, Bing, or any other search tool such as Nexis to investigate a party. Looking at the public portion of Facebook or MySpace is no different.
In a footnote, the New York Opinion distinguished the Philadelphia Opinion, which dealt with an unrepresented witness. The New York Opinion, in contrast, deals with a party, “and this party may or may not be represented by counsel in the litigation.” If a lawyer attempts to “friend” a represented party in a pending litigation, then this Opinion asserted that the lawyer’s conduct is governed by Rule 4.2 (the ‘no-contact’ rule), which provides that a lawyer “shall not communicate about the subject of the representation” unless the represented party’s lawyer gives prior consent. The New York Opinion went on to say that if “the lawyer attempts to ‘friend’ an unrepresented party, then the lawyer’s conduct is governed by Rule 4.3,” which governs contact with unrepresented parties. That Rule prohibits a lawyer from stating or implying that he or she is disinterested and prohibits the lawyer from giving legal advice other than the advice to secure counsel if the other party’s interests are likely to conflict with those of the lawyer’s client. The Opinion said that it did not “address these scenarios.”
One wonders whether Rule 4.2 or Rule 4.3 even applies to the request to be added as a Facebook “friend.” The lawyer (or investigator) simply asks to be a Facebook “friend,” that is, the lawyer or investigator asks the person (whether represented or unrepresented) for permission to access the party’s webpage. They are not communicating about the subject matter of the litigation. Other than the initial request to be a Facebook “friend,” there is no communication. The Facebook page—or Twitter feed, or the Google+ page or whatever social network is the next “must have” application—may or may not be relevant to the litigation. The lawyer is not asking about the litigation; the lawyer simply wants to see a page in cyberspace without incurring the expense of a subpoena, particularly if court rules limit the number of subpoenas.
Social Media and Jurors
Later, New York tackled the issue of a lawyer who uses social media like Facebook to investigate jurors. The Committee on Professional Ethics of the Association of the Bar of the City of New York, in Opinion 2012-2 (2012) advised that lawyers may use social media for juror research as long as there is no communication between the lawyer and the juror because of the research. That makes sense. If the lawyer, either unknowingly or inadvertently, causes a communication with a juror, “such conduct may run afoul of the Rules of Professional Conduct.” The lawyer, of course, must not use deceit to gain access to a juror’s website or to obtain information. Similarly, third parties working for the benefit of or on behalf of the lawyer must comport with the same restrictions as the lawyer. If the lawyer learns of juror misconduct through otherwise permissible research of a juror’s social media activities, the lawyer must reveal the improper conduct to the court.
During the trial (either in its evidentiary or deliberative phase), the lawyer may visit the publicly available Twitter, Facebook, or other social networking page of a juror. However, the lawyers may not “friend” a juror, or send emails to a juror, or send tweets to any juror or act in any way by which the juror becomes aware of the monitoring. Asking a juror to be a “friend” is a communication. In contrast, asking a witness or party to be a “friend” is not a communication “about the subject matter of the litigation” nor is it offering “legal advice.”
What jurors put on their Facebook page is fair game for discovery. In Juror Number One v. Superior Court of Sacramento County, the appellate court held that the trial court could compel a juror to disclose the juror’s Facebook postings. In this case, Juror Number One posted items on his Facebook account concerning the criminal trial while it was in progress, in violation of the court’s admonition. In one posting, Juror Number One posted that the case had been boring that day and that he almost fell asleep. The court rejected the motion of Juror Number One to quash the subpoena.
Some states have responded with new rules that deal specifically with social media. For example, New Jersey state courts amended their Model Civil Jury Instruction to include the following:
You also should not attempt to communicate with others about the case, either personally or through computers, cell phones, text messaging, instant messaging, blogs, Twitter, Facebook, Myspace, personal electronic and media devices or other forms of wireless communication.
Social Media and Clients
Lawyers may investigate witnesses or opposing parties by using Facebook, Google Search, or other electronic means as long as they are not deceitful. That, in turn, raises the question of whether the lawyer can advise a party to scrub online data like that found on Facebook, in order to prevent the opposing side from obtaining it. Is it ethical for the lawyer to advise his client to “clean up” his Facebook account, or delete some embarrassing YouTube videos?
The answer to these questions should not be surprising. Parties cannot destroy evidence and lawyers may not advise them to do that. On the other hand, lawyers can advise parties not to post anything on Facebook about the litigation. This is analogous to the lawyer telling the client not to talk about the case with anyone. Similarly, the lawyer can advise the client to turn up the privacy settings on Facebook. The other side can still get this information but must request the party to turn it over.
Recently, the New York County Bar Association opined that in some circumstances, lawyers may advise a client to “take down” social media and online postings that could have an adverse effect on the client’s position in a civil matter. The lawyer, according to Opinion 745 (July 2, 1013), may advise clients “to keep their social media privacy settings turned on or maximized and may advise clients as to what should or should not be posted on public and/or private pages.” The lawyer is not advising the destruction of evidence; instead, the lawyer is simply advising the client not to post anything that the client would not want the other side to know.
The more interesting question is to what extent the lawyer may advise the client to “take down” something already posted. Its opinion on that issue is vague and conclusory. The New York Opinion actually said, “Provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence,” the lawyer may offer advice on “what may be ‘taken down’ or removed.” That is bad advice.
Lawyers who advise their clients to “clean up” their webpages should expect sanctions. That, at least, is the lesson of Allied Concrete Co. v. Lester. In that case, a lawyer ultimately paid a $542,000 sanction imposed in 2011 for his part in attempting to thwart access to a client’s Facebook account during a multimillion-dollar wrongful death lawsuit. That lawyer also faced discipline. Later, the Virginia State Bar Disciplinary Board imposed a five-year suspension on the lawyer because of his actions regarding the Facebook account of his client.
The lawyer instructed a paralegal to tell Lester to clean up his Facebook page so that photos and other information would not be shown at trial. An email showed that the lawyer told the paralegal to tell the client to “clean up [his] facebook [sic] and myspace [sic]” account, and take down a photo. As a result, Lester deleted 16 photos. For example, one Facebook photo featured Lester holding a beer and wearing a T-shirt emblazoned with the message “I love hot moms,” with love indicated by a heart. Lester was driving the car when the defendant’s driver crashed into it, eventually killing his wife. Perhaps the photo did not suggest that Lester, who was suing for wrongful death, was as sorrowful as he would like the jurors to believe. In any event, the plaintiff eventually gave all that information to the opposing party prior to trial. The trial court instructed the jury that Lester “intentionally and improperly deleted certain photographs from his Facebook account, at least one of which cannot be recovered,” and that they could draw an adverse inference against him. At the end of the trial, the jury awarded the plaintiffs millions of dollars.
Allied Concrete then filed post-trial motions seeking sanctions against Lester and his lawyer, Matthew B. Murray (“Murray”), arguing (among other things) that Lester conspired with Murray to intentionally and improperly destroy evidence related to Lester’s Facebook account, provided false information and testimony related to his Facebook page, and engaged in the spoliation of Facebook evidence. The Court found that Lester lied about his Facebook page and about other matters. The trial court granted the defendant’s motion to order the lawyer to pay sanctions for his conduct. The lawyer and his client ended up paying $722,000 to the legal teams representing Allied Concrete for reimbursement of legal fees incurred because of their conduct.
As evidenced by these examples, the ethical rules regarding the use of Facebook and other social media are in a state of flux and are rife with misunderstandings of how these sites work. It will be interesting to see whether they can catch up and adequately regulate lawyers’ various uses of social media in the context of litigation.