GAINESVILLE – With social media becoming an ever-greater part of people’s lives, it isn’t surprising that it’s also being drawn in to litigation, but lawyers need to be careful when advising clients, according to a Florida law professor.
“To represent a client competently today, every lawyer must have a conversation about social media use by the client,” Lyrissa Lidsky, a professor at the University of Florida’s Levin College of Law, told the Florida Record. “Most of the time, it is wise to counsel the client to cease using social media for the duration of the litigation. Lawyers must not, however, counsel destruction of existing social media evidence once litigation is in view.”
An ethics opinion issued by the Florida Bar last year offered similar guidance. It said lawyers can advise clients to change privacy settings so that accounts aren’t publicly accessible, and that they can advise clients to remove information that might be relevant to an upcoming case as long as doing so wouldn’t violate any rule about preserving evidence and that the data is preserved.
What that requires is going to vary from case to case and network to network, Lidsky said.
“Deactivation of a Facebook account has the effect of freezing it at the time of deactivation, which will often be advisable practically and may even be required in order to preserve the evidence,” she said. “But each social media site has its own policies, so a lawyer may have to investigate each.”
The issue is of concern because courts have increasingly said that posts on social media are fair game as evidence in all kinds of proceedings. In Florida, an appellate court ruled in 2015 that people have no expectation of privacy on social media sites such as Facebook, and ordered a plaintiff to turn over photos from her private Facebook account.
“Because information that an individual shares through social networking websites like Facebook may be copied and disseminated by another, the expectation that such information is private, in the traditional sense of the word, is not a reasonable one,” Judge Robert Gross wrote in a unanimous decision.
In other states, courts have used posts on social media sites as evidence in a wide variety of cases, including divorce and custody disputes. In one decision mentioned by the American Bar Association in a paper about social media and litigation, the Iowa Court of Appeals cited a Facebook post in its opinion.
In that case, a father was accusing his ex-wife of trying to turn their children against him. The court noted that she had called him a bad father in a Facebook post and that one of their children had seen the post. That, in combination with other factors, affected the court’s decision.
Lidsky said more and more cases are involving social media, including divorce and custody cases.
“Social media evidence is coming up in all kinds of cases, especially in family law proceedings,” she said.