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.