Ethical Obligations and Discovery in the Facebook Age
By Jonathan Blecher on March 9, 2017
Social media websites present a new battleground for discovery disclosures and present ethical implications for attorneys. Clients need to be informed about the risk that social media can pose to them without overstepping the boundaries of ethical behavior.
Evidence and Social Media
Although it seems like an ordinary reaction to most social media blunders, it is unethical misconduct to suggest to your client that they remove something on their Facebook page or other social media sites. An ounce of prevention is worth a pound of cure: make sure your clients know the risks and dangers of using social media and broadcasting their opinions on the case before they start using it. Even telling clients to set posts they have put online as private may be seen as a deliberate attempt to hide evidence.
Attempting to acquire evidence using social media without disclosing your identity, or failing to tell the person you are acquiring the data why you want it, maybe considered “phishing” and is illegal under current law. All data accounts you use in any professional capacity need to have your name on them.
In Florida, the electronically stored information is discoverable, but information that is “not reasonably accessible” isn’t discoverable unless you have good cause. If you or your client are convinced that evidence that is crucial to your case can be discovered, you can request the production of evidence and specify the file format.
If your client has information behind a wall online (such as a post made exclusive to certain friends or associates) then it is recommended that you move for a protective order to keep the court out of your client’s hidden posts. If you can get an agreement from the other party to keep social media out of the courtroom, you can come out ahead.
A recent appellate decision has suggested that there are limits as to what can be considered discoverable, especially in the case of wrongful death suits and personal injury suits. The Second District Court of Appeal found that discovery requests can only hone in on matters that specifically pertain to the case at hand. It is, therefore, hard to build a case based on the idea that someone may have been negligent or otherwise caused their own accident, or that they weren’t experiencing the psychological toll they might have told the court they had, using social media.
The more slippery slope may be in the criminal context. An attorney should be very careful when advising a client about posts made on social media sites, particularly when a client may have made admissions online, or posted photographs or status updates that could be deemed evidence in the case.
If you’ve been arrested or are being investigated for a crime, you should not hesitate to contact a trusted Miami criminal defense attorney. I have more than 30 years of legal experience representing clients throughout Florida, and I know the fundamentals behind building a compelling case.
To schedule your free case consultation, call 305-321-3237 today.