Ethical Considerations on Social Media EVIDENTIARY AND ETHICAL CONSIDERATIONS WHEN USING SOCIAL MEDIA TO BUILD OR DEFEND A CASE.

Transcription

1 Ethical Considerations on Social Media EVIDENTIARY AND ETHICAL CONSIDERATIONS WHEN USING SOCIAL MEDIA TO BUILD OR DEFEND A CASE.

2 Florida Rules of Professional Conduct Rule Fairness to Opposing Party and Counsel Rule (in relevant part) A lawyer must not: (a) unlawfully obstruct another party's access to evidence or otherwise unlawfully alter, destroy, or conceal a document or other material that the lawyer knows or reasonably should know is relevant to a pending or a reasonably foreseeable proceeding; nor counsel or assist another person to do any such act;... (d) in pretrial procedure, make a frivolous discovery request or intentionally fail to comply with a legally proper discovery request by an opposing party;

3 Comment to Rule The procedure of the adversary system contemplates that the evidence in a case is to be marshaled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure and the like...

4 Comment to Rule (in pertinent part) Documents and other items of evidence are often essential to establish a claim or defense. Subject to evidentiary privileges, the right of an opposing party, including the government, to obtain evidence through discovery or subpoena is an important procedural right. The exercise of that right can be frustrated if relevant material is altered concealed or destroyed. Applicable law in may jurisdictions makes it an offense to destroy material for the purpose of impairing its availability in a pending proceeding or one whose commencement can be foreseen. Falsifying evidence is also generally a criminal offense. Subdivision(a) applies to evidentiary material generally, including computerized information...

5 Professional Ethics of the Florida Bar Proposed Advisory Opinion 14-1 January 23, 2015

6 1) Pre-litigation, may a lawyer advise a client to remove posts, photos, videos, and information from social media pages/accounts that are related directly to the incident for which the lawyer is retained? 2) Pre-litigation, may a lawyer advise a client to remove posts, photos, videos, and information from social media pages/accounts that are not related directly to the incident for which the lawyer is retained? 3) Pre-litigation, may a lawyer advise a client to change social media pages/accounts privacy settings to remove the pages/accounts from public view? 4) Pre-litigation, must a lawyer advise a client not to remove posts, photos, videos and information whether or not directly related to the litigation if the lawyer has advised the client to set privacy settings to not allow public access?

7 Proper Inquiry Whether information on a client s social media page is relevant to that reasonably foreseeable proceeding, rather than whether information is related directly or not related directly to the client s matter. Professional Ethics of the Florida Bar Proposed Advisory Opinion 14-1 January 23, 2015

8 PRIVACY SETTINGS A lawyer may advise a client to use the highest level of privacy setting on the client s social media pages Professional Ethics of the Florida Bar Proposed Advisory Opinion 14-1 January 23, 2015

9 REMOVAL OF INFORMATION A lawyer may advise the client pre litigation to remove information from a social media page, regardless of its relevance to a reasonable foreseeable proceeding as long as the removal does not violate any substantive law regarding preservation and or spoliation of evidence If the lawyer does so an appropriate record of the social media information or data must be preserved if the information or data is known by the lawyer or reasonably should be known by the lawyer to be relevant to the reasonably foreseeable proceeding Professional Ethics of the Florida Bar Proposed Advisory Opinion 14-1 January 23, 2015

10 Summary A lawyer may advise a client change privacy settings on the client s social media pages so that they are not publicly accessible. Provided that there is no violation of the rules or substantive law pertaining to the preservation and/ or spoliation of evidence, a lawyer also may advise that a client remove information relevant to the foreseeable proceeding from social media pages as long as an appropriate record of the social media information or data is preserved. Professional Ethics of the Florida Bar Proposed Advisory Opinion 14-1 January 23, 2015

11 Florida Rules of Professional Conduct Rule Competence COMPETENCE: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. Professional Ethics of the Florida Bar Proposed Advisory Opinion 14-1 January 23, 2015: The general obligation of competence may require the inquirer to advise the client regarding removal of relevant information from the client s social media pages, including whether removal would violate any legal rules regarding preservation of evidence, regardless of the privacy settings.

12 Florida Rules of Professional Conduct Rule Diligence Rule Diligence: A lawyer shall act with reasonable diligence and promptness in representing a client Comment to Rule (In Pertinent Part): A lawyer should pursue a matter on behalf of a client despite opposition, obstruction, or personal inconvenience to the lawyer and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client.... The lawyer's duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.

13 Florida Rules of Professional Conduct Rule Candor Toward the Tribunal: Rule Candor Toward the Tribunal (in relevant part) (a) False Evidence; Duty to Disclose. A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;... (4) offer evidence that the lawyer knows to be false. A lawyer may not offer testimony that the lawyer knows to be false in the form of a narrative unless so ordered by the tribunal. If a lawyer, the lawyer s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.

14 Privacy and Social Media Nucci v. Target Corp So. 3d 40 FLW D166a (Fla. 4 th DCA 2015) Generally the photographs posted on a social networking site are neither privileged nor protected by any right of privacy regardless of any privacy settings that the user may have established. Id. at 9 Because "information that an individual shares through social networking web-sites like Facebook may be copied and disseminated by another," the expectation that such information is private, in the traditional sense of the word, is not a reasonable one. Beswick v. N.W. Med. Ctr., Inc., No CACE(03), 2011 WL (Fla. 17th Cir. Ct. Nov. 3, 2011). Id at 9.

15 Normal Discovery Principles Apply to Social Media Root v. Balfour Beatty Construction Inc d 867, (Fla. 2 nd DCA 2014) Information sought to be discovered from social media must be: 1. Relevant to the case s subject matter and 2. Admissible in court or reasonably calculated to lead to evidence that is admissible in Court Professional Ethics of the Florida Bar Proposed Advisory Opinion 14-1 January 23, 2015 citing: Root v. Balfour Beatty Construction Inc d 867, (Fla. 2 nd DCA 2014)

16 Practical Application : Preserving Social Media Evidence Preservation: Spoliation Letters Motions to Preserve Printing / Screenshots Having a Client Download a copy of his/her personal Facebook Data or Having a Client contact Facebook for a copy of their personal data Social Media Evidence: What You Can t Use Won t Help You - Practical Considerations for Using Evidence Gathered on the Internet (The Florida Bar Journal January 2014 Volume 88, No. 1

17 Practical Application : Finding Social Media Evidence Discovery Mechanisms Interrogatories: (Florida rule of Civil Procedure 1.340) Requests for Production (Florida Rule of Civil Procedure 1.350) Subpoena (Florida Rule of Civil Procedure 1.410) The Internet Archive s Wayback Machine Caution: Courts have required evidence regarding how the Wayback Machine works See St. Luke s Cataract & Laser Inst., P.A. v. Sanderson, 2006 WL (M.D. Fla. May 12, 2006) The Florida Bar Journal January 2014 Vol. 88 No. 1 pg. 8 Social Media Evidence: What You Cant Use Won t Help You Practical Considerations for using Evidence Gathered on the Internet

18 Evidentiary Considerations Authentication (F.S ) Personal Knowledge (U.S. v. Lebowitz, 676 F.3d 1000 (11th Cir. 2012)) Distinctive Characteristics (U.S. v. Benford 479 F. App x 186 (11th Cir. 2011)) Self-Authentication (Florida Statute ) Expert Testimony (Tiffany (NJ) LLC v. 954JEWELRYMAX.COM, No CIV, 2012 WL (S.D. Fla. Oct. 15, 2012) Relevance (FS ) Demonstrating Witness Bias (State v. Harden 87 So. 3d 1243 (Fla. 4 th DCA 2012) The Florida Bar Journal January 2014 Vol. 88 No. 1 pg. 8 Social Media Evidence: What You Cant Use Won t Help You Practical Considerations for using Evidence Gathered on the Internet