If the failure to preserve social media leads to significant evidentiary sanctions or adverse jury instructions, the client will inevitably blame the lawyer for not advising of this risk. A malpractice lawsuit is likely to be born as a result. At the outset of litigation, a diligent plaintiff’s counsel should send a letter to opposing counsel demanding that the defense preserve all social media and electronically stored information, even before discovery commences. As a Colorado federal judge recently wrote in an opinion chastising a lawyer who complained that a defendant destroyed electronically stored information, “Given the dynamic nature of electronically stored information, prudent counsel would be wise to ensure that a demand letter is sent to a putative party.” The same could be said about preserving social media information. San Bernardino business lawyer will help you in all business matters and can solve business issues.
If a preservation letter is sent to an adverse party at the outset of the litigation, and then later the social media Web pages are altered or deleted, the court may sanction both counsel and the adverse party. In discovery, a party should routinely inquire of individual and corporate litigants to identify all social media profiles and request production of social media content. When seeking this information, make sure to specify specific date ranges that the social media was available on the Internet. When a similar discovery is propounded to your client, a thorough and diligent inquiry should be undertaken with your client to determine if any social media profiles have been altered, modified, or deleted during the dates in question.
Matt Murray taught all of us an invaluable lesson: Social media content is as important as any document or electronically stored information evidence. The negligent or intentional spoliation of social media is malpractice and will likely result in sanctions that could cause irreparable harm to a client’s claims and to a lawyer’s reputation. The best way to avoid this malpractice trap is for the lawyer to advise the client in writing to collect and preserve all social media and electronically stored information at the outset of the attorney-client relationship and follow-up to make sure those instructions are followed.