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To delete or not delete? Attorney offers advice on social media discovery

Is it ethical to advise a client to delete her Facebook posts if they’re damaging to her lawsuit? Can you, the attorney, attempt to “friend” (or join the private network of) the party she’s suing in order to dig up information? If not, could you ask your secretary to do it?

These are some of the thorny questions St. Louis attorney Michael Downey discussed during his CLE, “Ethics Issues Surrounding Discovery and Social Media” on Sept. 28, the final day of The Missouri Bar Annual Meeting at the Hilton St Louis At The Ballpark hotel.

As Downey sees it, the one area of his talk that attorneys are least familiar with is the obligation to produce evidence from sites such as Facebook, Twitter and LinkedIn.

“People don’t always appreciate that ‘documents’ includes anything you have on social media,” Downey said.

In his talk, Downey also talked about the duty to preserve such evidence, as opposed to arranging for its deletion. He pointed to Rule 4-3.4(a) of the Rules of Professional Conduct. It holds that an attorney “shall not . . . alter, destroy, or conceal a document or other material having potential evidentiary value.”

To do those things, Downey explained, may constitute “spoliation,” which in Missouri is a common-law doctrine against “the destruction or significant alteration of evidence.” Not having a satisfactory explanation for why, say, a relevant Facebook post was deleted in the context of a lawsuit will give rise to a negative inference against the party that deleted it and may expose the party to sanctions.

“Generally, if you’re engaging in conduct that destroys evidence, you’re doing something wrong,” he said.

To advise a client to first download — and thereby preserve — the damaging Facebook and then delete it on the social-media website doesn’t pass ethical muster either, Downey said. That’s because doing so would violate the above rule, which admonishes members of the bar not to “conceal a document.”

What attorneys can do, Downey said, is to advise the client to stop posting any further harmful content on social media in the future.

He added that it’s still unclear whether there’s a duty to preserve “disappearing data,” for example, messages sent through the app Snapchat, in which the default setting is to automatically delete communications after a certain period of time.

When it comes to investigating the opposing party, Downey said, any social media posts that are available to the public are fair game. If you are the petitioner’s attorney and the respondents have not retained a lawyer, then you can request to join their private networks to obtain material in their circle of privacy so long as you are “open and honest” about your identity and profession.

But if the respondents have indeed retained counsel, you cannot do this under Rule 4-4.2 because that would be a “communication” with a represented person, and such a communication is allowed only by court order or consent of opposing counsel.

Downey said that at no point can you assume a false identity to “friend” the respondent, for that would run afoul of Rules 4-4.1(a) and 4-8.4, which prohibit attorneys from making a “false statement of material fact” or engaging in an act of “dishonesty, fraud or deceit or misrepresentation.”

But what if you, as the petitioner’s attorney, were to ask a colleague at your office to try to “friend” the respondent instead? Would that colleague then have an affirmative duty to disclose his or her relationship to you? Opinions differ, Downey said. The bar in Philadelphia has said yes; the bar in New York has said no. The Missouri Bar, meanwhile, has not yet weighed in on that specific issue.

Other aspects of Downey’s presentation included ambiguities in Missouri law related to how an attorney should respond upon receiving an unsolicited amount of non-public material from the opposing party’s social media space, and whether there is a duty to disclose such an event.

Downey is the founder of Downey Law Group in St. Louis County and a legal-ethics attorney who represents lawyers, law firms and judges in complex civil litigation and disciplinary hearings.