This post is part of a series titled “Social Media Dos and Don’ts for Lawyers.” Click here to view all the installments.
In considering the impact of social media on litigation, one of the first questions every attorney should ask is, “How can I best protect my client?” The ubiquity of social media in our personal and professional lives has ushered in an era in which attorneys must explicitly advise their clients about social media issues at the beginning of every case. It is not enough to impliedly lump such conversations into generic discussions about electronic communications. Conscientious attorneys must address social media issues with specificity. Below are a couple of suggestions to keep in mind.
DO Instruct Your Clients to Preserve Discoverable Social Media Information
At a minimum, attorneys should introduce social media issues with their clients at the beginning of every case while discussing standard litigation hold and document preservation issues. There is little debate that social media information is discoverable. Accordingly, it is imperative to communicate that discoverable social media information must be properly maintained to avoid spoliation issues.
Similarly, attorneys must make every effort to make sure their clients do not subject themselves to sanctions by destroying discoverable social media information. For year, attorneys have routinely circulated litigation hold memoranda to clients at the beginning of a lawsuit as a matter of course. Traditionally, these communications expressly covered physical documents. More recently, attorneys have updated such memoranda to address e-mails, source code, and other types of electronically store information, including information posted to social media platforms.
This post was devised from “SOCIAL MEDIA DOS AND DON’TS FOR LAWYERS,” Business Disputes 2014 Course