On January 23, 2015, the Professional Ethics Committee of the Florida Bar issued Proposed Advisory Opinion 14-1, in which the Committee found that “a lawyer may advise the client pre-litigation to remove information from a social media page, regardless of its relevance to a reasonably foreseeable proceeding.” However, the Committee explained that this can be done “as long as the removal does not violate any substantive law regarding preservation and/or spoliation of evidence.” The Committee recognized that New York and other states have also found that lawyers may advise their clients to remove (or modify) information from social media as long as there is no duty to preserve it and no spoliation of evidence.
Moreover, the Proposed Advisory Opinion stated that if a lawyer chooses to counsel his or her client pre-litigation to remove information from social media, “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.” The Committee’s Proposed Advisory Opinion did recognize that “What information on a social media page is relevant to reasonably foreseeable litigation is a factual question that must be determined on a case-by-case basis.”
The Committee’s Proposed Advisory Opinion also noted that the Committee was “aware of cases addressing the issue of discovery or spoliation relating to social media.” The Committee’s Proposed Advisory Opinion cited cases from Virginia, New Jersey, and New York, with the first case cited being Allied Concrete v. Lester, 736 S.E. 2d 699 (Va. 2013), in which a lawyer was sanctioned $542,000 and the client sanctioned $180,000 for spoliation arising out of photographs being deleted from the client’s social media account.
If you would like to read the full text of Proposed Advisory Opinion 14-1, it can be found here.