Are You Preserving Your Social Media?
It might seem that nothing would be more temporary than a quick email, text or Twitter message. Yet these messages are increasingly subject to a duty of preservation, whether that duty is for a lawyer specifically, or a lawyer on behalf of a client. Consider these issues.
Rule 1.6(c)
This past summer the ABA's House of Delegates added to Rule 1.6, Confidentiality, a new subparagraph (c) requiring a lawyer to "make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client." In this sense, "information" refers to electronic communication. Although the comments to this rule specifically says that complying with state and federal privacy laws for this communication is beyond the scope of the rule, that doesn't absolve lawyers from the responsibility to keep confidential electronic messages confidential.
Producing Electronic Messages in Discovery
Since 2006 the Federal Rules of Civil Procedure require producing not just paper but all electronic documents and data for trial, or face penalties from the court. That includes emails and other electronic messages. In the precedent-setting case on this issue, Zebulake v. UBS Warburg in 2004, a federal judge in New York found that the employees of the defendant had deleted numerous e-mails relevant to the case after the defendant's legal counsel had issued a litigation hold, giving instructions to preserve all such electronic data. The court penalized Warburg and its counsel. Anyone who can be sued, including a law firm, has this same obligation to produce electronic messages in discovery.
The Internet is Forever
Most significantly, this duty to preserve does not just mean big corporate lawsuits. One family law practitioner with whom I work has suggested that if a person involved in a divorce takes down or changes a Facebook page or other social media posting that might provide juicy insights to opposing divorce counsel, it could constitute spoliation of evidence - and thus be a crime. This lawyer suggest printing and saving screen shots of such postings before deleting them, in case they need to be produced in court. Such concerns reinforce what many of us have already learned the hard way: whether we like it or not, the Internet is forever and, for a lawyer, it seems that so too is the lawyer's duty to preserve what is lurking in cyberspace.
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