By J. Michael Taylor
Note: The scope of this article is limited to obtaining information, primarily social media, in the course of active litigation where evidence is sought from an opposing party, or where the opposing party can interpose objections when the data is sought from third party social media platforms. Obtaining such information by extrajudicial means, such as accessing data bases without the owner’s contemporaneous or direct knowledge, is beyond the scope of this article.
Electronically Stored Information, or “ESI,” has been around for decades. Social media, while not entirely new, is a subset of ESI that has evolved in unanticipated directions. Indeed, the rate of the use of social media not only has continued to increase exponentially, but it also has evolved to the point that human behavior has changed in response, with new platforms being developed to meet, if not create, more need. This cycle of change is difficult for most users to keep up with, and the rules governing the discovery of that information are lagging further behind. The “give me everything you have” requests that worked in the days of paper banking and credit card statements is now problematic as the wealth of data contained in ESI pushes against long-standing protections of privacy, privilege and the rules of relevance. In large part, the time-tested balances from the days of typewriters and paper trails still work, but in the age of social media, the specific applications of the rules implementing those concepts present new challenges. This article explores the present employment of those existing rules to that continually evolving landscape.
ESI issues start with the first consultation
Because ESI in general is as ephemeral as the arrangement of the electrons that comprise it, extraordinary care is required to preserve it. The issue of preservation has several moving parts.
First, the South Carolina Rules of Professional Conduct prohibit an attorney from obstructing another party’s access to evidence and from unlawfully altering, destroying or concealing material having potential evidentiary value. In addition, the Rules prohibit an attorney counseling or assisting a witness to provide false evidence. The comments to that Rule clarify that “[p]aragraph (a) applies to evidentiary material generally, including computerized information.” The comments also note that “many jurisdictions make it an offense to destroy material for purposes of impairing its availability in a pending proceeding or one whose commencement can be foreseen.”2
Thus, during the first consultation with a potential client, counsel should instruct the client about the importance of preservation of evidence and advise the client not to delete any ESI unless it is legitimately in the normal course of business to do so—that is, if deleting data in cloud storage to make room for new data is not a sudden, new practice but one that has been followed in the past with regularity.3 Even then, because courts have sanctioned lawyers personally for their client’s failure to preserve or prevent intentional destruction of evidence, lawyers should include in their notes or in a follow-up letter that they instructed the potential client about preservation of possibly discoverable material.4
As for future online activity, many family law attorneys often advise clients to stop posting publicly on social media sites. However, such advice can have an underappreciated adverse effect. In today’s world, advising a client to change their lifestyle by abstaining from social media is like advising a party to not use their smart phones. Advising a party to “go dark” isolates them from their friends, family, social groups, professional networking sites and other interests, thereby creating more stress. Instead, in a divorce action an attorney should instruct the client to maintain a near-normal lifestyle but to assume their worst enemy is reading every future post and could potentially use it to the client’s disadvantage in court.
The next problem is that some evidence may nonetheless be destroyed, either intentionally or unintentionally. It is not unheard of for an unscrupulous litigant to erase posts or suddenly “lose” their phone, or after turning it over, use “Find My iPhone” to wipe it clean remotely. Less well known is the unintentional destruction of evidence. iPhones, for example, routinely delete emails over 30 days old. Even if there are automatic scheduled backups to the cloud, those protocols may not be engaged. While this may fall within the normal course-of-business routine cleanup habit, that shield will not be available if opposing counsel specifically asks that all deletion protocols be disabled.
The dilemma in ensuring proper preservation of ESI evidence is that, particularly when there is a risk of intentional destruction of data, the four traditional ways to obtain evidence are not always effective in preventing such destruction. The first way is a criminal warrant for the device itself. But this requires a showing of probable cause, and the devices will be in the custody of the police and therefore not available for civil litigation.
The third method is a request to produce the physical device or an interrogatory requesting the account information and password, which would allow the receiving party to go straight to the device or platform and access the data directly. But this method gives the responding party even more time a minimum of 30 days within which to respond. Additionally, this option has additional problems that are discussed later in this article.
The fourth method is an ex parte order prohibiting destruction of ESI along with an order to bring a device to an emergency hearing. This method sounds good in theory, but in practice it could be difficult. It requires, at a minimum, an affidavit or verified pleading showing a substantial risk of irreparable injury, loss or harm that will result from the delay required to effect notice, and a showing that notice itself will precipitate adverse action before an order can be issued. Such a high burden is difficult to meet, particularly at the beginning of a case. If such an order is requested during the litigation after counsel has been retained, there will be the additional burden of issuing the order without notice to opposing counsel, or if opposing counsel is notified, addressing whether that counsel can or cannot communicate to his client that his device will be inspected.
Given the delays inherent in the foregoing, it is common practice for a requesting party to send the responding party an anti-spoliation letter as soon as it is determined ESI will be an issue.7 This letter puts the responding party on notice that ESI will be requested and that all past and future activity (whether by online or cellular methods) must be preserved, that any automatic deletion protocols should be disabled, and that the responding party should refrain from deleting data maintained “in the normal course of business.” Such a letter serves as immediate notice obviating the need for a court hearing. This method also does not provide the responding party with minimum time within which to respond.
Failure to comply with an anti-spoliation notice carries substantial risk. First, there is the risk to the case itself. In some situations, the date that hard drives were smashed, or posts were deleted and overwritten can be reconstructed. But even if they cannot be, the fact such destruction took place after notification raises problems for the responding party such as opening him to impeachment at trial. More significantly where parties and their attorneys are found guilty of deleting evidence, courts have considered a variety of penalties including a negative inference (i.e., a presumption that the deleted data was damaging to that party), financial sanctions or disbarment.8
An anti-spoliation notice has even more horsepower if anti-spoliation language is also included in...