If you’ve read my last two posts (here and here), they may seem like a clarion call to dump your text messages, delete your emails and deactivate your accounts on Facebook, Twitter, Instagram, and Vine. At least if you’re about to go through a divorce.
Because deactivating your Facebook doesn’t mean it can’t hurt you. And if you’re wondering why, try Google-ing the word “spoliation.”
It’s Spol-ee-ay-shun NOT Spoil-ay-shun
The term spoliation dates to the 18th century, and is a fairly catch-all reference to the intentional destruction of evidence. (Think Arthur Andersen manning the shredders as the Justice Department closed in on Enron.) While destroying evidence can be both a civil and criminal offense, in the context of most civil cases spoliation yields stiff sanctions and an adverse inference by your fact-finder (usually a judge in family court) that the evidence destroyed was unfavorable to you. Which is probably a pretty safe bet if you went to the trouble to destroy it.
In the context of paper files, the doctrine is pretty simple: don’t go around shredding files or burning ledgers during (or on the eve of) a lawsuit. But in the electronic realm things get a bit more dicey.
The Dangers of Deactivation
Not that readers of F-I-L would ever do such a thing, but imagine for a moment that you’ve taken a picture of one of the more private parts of your anatomy and posted it on social media with a less than flattering comparison to your ex. You’ve already violated any sense of good manners once by posting. A fact you realize in the cold light of morning. But can you remove the post? Could you even go a step further and simply deactivate your account until the dispute is over?
While the case law on spoliation and social media is still developing, there are a few cases from across the country where courts have treated Facebook deactivation as akin to putting documents through a shredder, and slapping sizable sanctions on the violating parties.
In Gatto v. United Air Lines, Inc. 10-CV-1090-ES-SCM (D.N.J. Mar. 25, 2013). Plaintiff sued his former employer for injuries sustained on the job. The employer sought discovery into Plaintiff’s Facebook page, including requests for authorizations for his social networking sites. After service of discovery, Plaintiff de-activated his Facebook page which, per Facebook’s policy, was then automatically deleted after 14 days. The Court found spoliation and granted an adverse inference. Plaintiff’s good intentions allowed him to escape paying employer’s attorney’s fees and costs, but just barely.
The plaintiff in Allied Concrete Co. v. Lester, 736 S.E.2d 699 (2013) wasn’t so lucky. Plaintiff filed suit against Defendant in a wrongful death action. After unflattering evidence of Plaintiff was found on his Facebook page (a picture of him holding a beer can and wearing a shirt declaring his ♥ for hot moms), his attorney—acting through a paralegal—advised him to “clean up” his Facebook page because “[w]e don’t want any blow-ups of this stuff at trial.” Plaintiff removed several photographs at his attorney’s instruction and deactivated his Facebook page. His discovery responses stated that he no longer had a Facebook page. The trial court imposed sanctions for spoliation of $180,000 against Plaintiff and $542,000 against his attorney. Yikes.
More recently, in a police brutality case in New York, a district court issued an adverse inference instruction where plaintiff deactivated his Facebook account shortly after filing suit. According to the decision: “Plaintiff conceded that the account contained relevant pictures and information that were no longer available as a result of his actions.” Incidentally, the defendants (New York City) also received over $200,000 in attorneys’ fees against the plaintiff, though not directly tied to spoliation. Abeyta v. City of New York, No. 13-4817-CV (2d Cir. Dec. 15, 2014.)
I don’t have cites for any divorce or custody cases involving a spoliation finding (with or without sanctions), but even if one doesn’t currently exist, it’s probably just a matter of time.
Guidelines for Lawyers (and their Clients)
So in the case of our hypothetical Facebook-post-from-hell, what’s a person (or a lawyer) to do? “Clean up” your Facebook page is obviously bad advice (unless you want to lose and pay half a million dollars in sanctions).
Thankfully, the Philadelphia Bar Association’s Professional Guidance Committee released a helpful guide last summer dealing with social media and spoliation. (Hat tip to Hayes Hunt’s “From the Sidebar” blog for a great post on this).
At least according to the Philadelphia Bar, a lawyer can advise a client to change the privacy settings on his Facebook page so that it’s no longer visible to the viewing public:
Changing the client’s profile to “private” simply restricts access to the content of the page. While it may be more cumbersome for an opposing party to access the information, changing a client’s setting does not violate the Rules of Professional Conduct.
But destroying evidence, including deactivating a profile or deleting information from social media sites? It’s not only spoliation, it may also be a violation of the Rules of Professional Conduct:
A lawyer may advise a client about how to manage the content of the client’s social media account, including the account’s privacy settings. However, a lawyer may not advise a client to delete or destroy any information that has potential evidentiary value. Finally, in order to comply with a Request for Production of Documents, a lawyer must provide all information that the client has posted if the lawyer is aware that the information exists.
Beyond Social Media
Of course, we no longer live in 2005, and Facebook is no longer the cutting edge of technology. So even as our laws evolve to encompass social media, how do we address methods of communication that are, by their very nature, time-sensitive?
Think of SnapChat, Wickr, Flammo, Vaportstream and other messaging apps with built-in, self-destruct technology. What do we make of spoliation, when the media itself is designed to self-destruct?
I don’t pretend to know, but for a thorough discussion of spoliation, social media, and what comes next, check out attorney John G. Browing’s article Burn After Reading: Preservation and Spoliation of Evidence in the Age of Facebook, 16 SMU Sci. & Tech. L. Rev. 273 (2013).
Or leave your own answer in the comments.