Lawyer and law firm social media expert Stacey Burke presents on the dangers of your client's social media use during litigation.

1. +
The Social Butterfly: Your Client’s Digital Life
Stacey E. Burke

2. +
Introduction

3. + Social Media: By The Numbers
Number of active social media users: 3.4 Billion
Number of Internet users: 4.2 Billion
Total worldwide population: 7.7 Billion
Average time spent on social media: 116 minutes per day
Average number of social media accounts per person:
5.54
Social media users grew by 320 million between
September 2017 and October 2018
That equates to one new social media user every 10
seconds

4. +
Number of Users by
Social Media Channel
2.271 billion users
1.5 billion users
1 billion users
900 million users
562 million users
326 million users
186 million users

5. +
Social Media and Law Firm Clients

6. +
Trends in Social Media
 Over the past 10 years, with the growth of Facebook
and other social media sites, lawyers representing
insurance companies have attacked injured plaintiffs’
right to privacy by demanding access to their social
media content.
 The trend in more recent cases is for more
disclosure of personal and private social media
accounts.

7. +
Our Duty to Stay Up-to-Date
 Lawyers have a duty to keep themselves informed of
changes in the law, including the benefits and risks
associated with relevant technology.
 In today’s world of social media, relevant
technology includes Facebook, Twitter, Instagram,
LinkedIn, SnapChat, and more.

8. + A Sharp Increase
In fact, more than 50% of attorneys report seeing an
increase in discovery around social media and mobile
devices in their practice.

9. + Education + Monitoring
 As lawyers who represent people who are hurting and
vulnerable, we need to educate our clients about the
dangers of posting on social media.
 We also need to be aware of our clients’ social media
accounts and review those accounts periodically to
ensure our clients are aware of what has been posted.
Don’t forget about comments!
 What might have seemed like a brief snapshot in time
to a client may lead to dramatically different results
when presented in discovery, settlement negotiations,
or at trial.

10. + Best Advice? Abstain! Stay Off Social Media Entirely!
As difficult as it may be for people to live their lives off of
social media, that is the best advice for anyone involved in
a personal injury lawsuit. The risks are too great.

11. +
Why Social Media Matters In
Litigation

12. +
Jurisdiction & Venue Matter
 The standard is fairly
straightforward and consistently
applied: if social media
evidence is relevant, non-
privileged, and proportional to
the needs of the case, then it is
discoverable.
 States have developed more
complicated approaches to the
discoverability of social media
evidence, which vary greatly
from state to state.
Federal Courts State Courts
The availability of discovery into social
media evidence can be significantly impacted by your
venue and jurisdiction.

13. +
Social Media in Litigation:
State Court Example
 In Gulliver Schools Inc. v. Snay, a 2014 case out of the
Florida Court of Appeals, the daughter of the winning
party in an age discrimination lawsuit posted a comment
on her Facebook page about the outcome of her father’s
case and the European vacation paid for as a result.
 The post violated the confidentiality provisions of the
parties’ settlement and cost the plaintiff all of his
winnings.
 This case is a good reminder to know what your client is
posting on social media, and to ensure you know the
rules for your venue and jurisdiction.

14. + So What Is Your Responsibility When Advising Your Clients?
As you know, attorneys have many duties to their clients. Relevant to social media use,
attorneys must remember their:
• Duty to Preserve
• Duty of Competence
• Duty of Diligence

15. +
Duty to Preserve
 Social media posts, like any other type of “evidence,” may be
relevant to the lawsuit in which you are involved.
 Data residing on social media platforms is subject to the same
duty to preserve as other types of electronically stored
information (ESI). The duty to preserve is triggered when a
party reasonably foresees that evidence may be relevant to
issues in litigation.
 Evidence generally is considered to be
within a party’s “control” when the party
has the legal authority or practical
ability to access it.

16. +
But Also These….
 Comment 8 to Rule 1.1 of the
ABA Model Rules of Professional
Conduct requires lawyers to
“keep abreast of changes in the
law and its practice, including the
benefits and risks associated with
relevant technology.”
 These changes unquestionably
include social media technology
and other social networking
platforms, especially as these
technologies continue to change
the way lawyers communicate
with clients.
 Rule 1.3 of the ABA Model Rules
of Professional Conduct provides
that a lawyer shall act with
reasonable diligence and
promptness in representing a
client.
 As many social media users
publish endless amounts of
personal information, the basic
task of conducting social
media searches on clients,
opponents, and witnesses is
becoming a minimum level of
due diligence expected of
competent litigators.
Duty of Competence Duty of Diligence

17. + Expectations Becoming Codified
At least 35 states have formally adopted Comment 8 // “The Duty of
Technology Competence” and currently recognize that the competency
requirement extends specifically to social media.

18. +
Privacy Settings

19. + But What About Privacy Settings?
Social media users are likely familiar with privacy settings, and
understand that setting their profiles to “private” ensures people who are
not friends, connections, or followers cannot view their information and
postings.

20. +
No Expectation of Privacy
 Litigants continue to believe messages sent and posts made on
their social media accounts and other applications are “private”
and not subject to discovery during litigation.
 Courts consistently reject this argument, instead generally finding
“private” is not necessarily the same as “not public.”
 By sharing the content with others – even if only a limited number
of specially selected friends – the litigant has no reasonable
expectation of privacy with respect to the shared content.
 Consequently, discoverability of social media is
governed by the standard evidentiary analysis
and is not subject to any “social media” or
“privacy” privilege.

21. +
Relevant Caselaw

22. +
Different Venues Outline Similar but
Different Ethics Rules
 New York Bar Association
 A lawyer may also advise a client as to what content may be “taken
down” or removed, whether posted by the client or someone else, as
long as there is no violation of common law or any statute, rule, or
regulation relating to the preservation of information.
 Florida Bar Professional Ethics Committee
 Provided that there is no violation of the rules or substantive law
pertaining to the preservation and/or spoliation of evidence, the inquirer
also may advise that a client remove information relevant to the
foreseeable proceeding from social media pages as long as the social
media information or data is preserved.

23. +
Be Careful When Sharing

24. + First Reported Decision Involving Sanctions:
Lester v. Allied Concrete Co.
 The court sanctioned both the plaintiff and his counsel on its
determination that they had engaged in spoliation of social
media evidence.
 In that case, the lawyer told his paralegal to make sure the
plaintiff “cleaned up” his Facebook Profile.
 The paralegal helped the plaintiff to deactivate
his account and delete 16 pictures.
 Although the pictures were later recovered by
forensic experts, the court found sanctions were
warranted based on the misconduct.

25. +
So What Does It All Mean?

26. + Basic Ethics Commonsense
If you can’t do it offline, you can’t do it online.
• Do not ask a third party to do what you can’t do.

27. + What Not To Do: Social Media Posts
That Can Impact a Lawsuit
If your client is injured,
they shouldn’t post
about their exercise or
health routine:
Don’t post photos from a
vacation, especially
referencing the money
won:
This tweet cost Elon Musk
$20M in fines and his role as
CEO for 3 years:

28. +
Follow These Rules for Successful
Social Media Management
 Confirm your venue and/or state’s ethical rulings about what you
can and cannot advise your client to do with regard to their personal
social media accounts.
 Strongly encourage your clients to post nothing on their channels
immediately after an incident all the way through the lawsuit’s
resolution.
 Make sure any photo, status, link, or otherwise pertinent information
removed from a client’s social media account is archived or
available, if needed.
 Advise your clients about any confidentiality clauses that will impact
whatever posts they make after the lawsuit concludes.

29. +
Connect with Stacey:
 Facebook: @MarketingLawyers
 Twitter: @staceyeburke
 Instagram: @MarketingLawyers
 LinkedIn: /company/stacey-e-burke-p-c
 Website: www.staceyeburke.com
 My e-newsletter: http://bit.ly/StaceyMail