Social Media Investigations in Litigation – Ethical, Evidence Preservation, and Sanctions Risks
Social Media Investigations in Litigation – Ethical, Evidence Preservation, and Sanctions Risks
This Legal Alert was prompted by two recent matters that our firm was retained to defend involving alleged misuse of social media investigations during active litigation. These assignments illustrate different sides of this issue: the risks associated with failing to conduct appropriate online investigations and the consequences of improperly obtaining, advising on, or using social media evidence.
Social media investigations have become a routine, and increasingly indispensable, component of modern litigation strategy. For most cases, conducting a reasonable review of publicly available online content is no longer optional; it is part of the evolving standard of care for attorneys and is an expected element of competent representation. Courts recognize that evidence in the form of social media may result in admissions, clarification of critical timelines, and the disclosure of previously unknown witnesses.
Importantly, both clients and counsel should be aware that missteps in this area can carry significant consequences. Failing to conduct appropriate online searches, improperly advising clients regarding their own social media activity, or mishandling social media evidence may lead to sanctions, adverse evidentiary rulings, or professional ethics complaints. Equally important, attorneys who neglect to perform reasonable social media investigations risk overlooking critical facts or witnesses that could materially affect the outcome of a case.
While relatively few reported appellate cases have held that a law firm was liable for malpractice solely based on failing to conduct a social media search, the legal landscape is evolving. Courts increasingly acknowledge that competent representation includes the reasonable use of readily available digital information. When an attorney fails to investigate publicly accessible online evidence that would likely have revealed key facts, altered litigation strategy, or resulted in different outcomes, such omissions may expose counsel to malpractice claims.
In this Alert, we highlight key developments, identify common pitfalls, and discuss recent case law illustrating how the use or misuse of social media in litigation can expose parties and counsel to significant legal and professional consequences
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No Clear Published “Failure-to-Search Social Media” Malpractice Case (Yet)
As of now, there is no widely cited appellate decision in Florida, New Jersey, or New York expressly holding “Failure to conduct a social media investigation constituted legal malpractice.” Most reported cases instead involve spoliation (clients deleting Facebook posts); ethical violations in obtaining social media evidence; discovery sanctions; and issues arising from the failure to preserve ESI generally.
However, the absence of a reported decision does not mean the risk is theoretical, and it is prudent practice to ensure any of your insured law firms have formal social media investigation policies and guidelines.
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Social Media Investigation as Part of Competent Representation
Courts and ethics committees increasingly recognize that examining publicly available social media data including posts, photographs, and other activity is part of an attorney’s duty of technological competence under Model Rule 1.1 and corresponding state rules. Ignoring social media evidence risks missing key information and/or falling below the standard of care expected in litigation practice.
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Preservation Obligations and Sanctions for Spoliation
Once litigation is reasonably anticipated, all parties have a duty to preserve relevant electronically stored information (ESI), including social media content. Destruction, deletion, alteration, or concealment of relevant social media evidence can trigger spoliation sanctions under Federal Rule of Civil Procedure 37(e) and state discovery rules. Relevant case law illustrates the risks:
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Courts have routinely held that deleting or altering social media content after the duty to preserve attachments constitutes spoliation and may warrant sanctions, including adverse inference instructions or monetary penalties. For example, deletion of Facebook photographs inconsistent with claimed injuries has led to adverse inference orders.
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In one of the most frequently cited cases involving social media spoliation and attorney misconduct, Allied Concrete Co. v. Lester, 285 Va. 295, 736 S.E.2d 699 (2013), a lawyer and client were sanctioned more than $500,000 where counsel advised the client to “clean up” his Facebook page following a discovery request resulting in deletion of relevant evidence.
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Courts emphasize that ESI preservation obligations attach as soon as litigation is reasonably anticipated, which is before formal discovery begins, and extend to social media content that might be material to claims or defenses.
Failure to advise clients on preservation, or advising them to delete content, can expose counsel to sanctions and malpractice claims.
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Ethical Constraints on Social Media Investigations
While social media research is often appropriate, attorneys must observe ethical constraints, which demonstrates the necessity for all law firms to have firm-wide formal social media investigation policies and procedures firm-wide.
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Communications with Represented Parties
State ethics bodies have held that attorneys and their agents cannot use social media to make indirect, deceptive, or unconsented communication with represented parties. In Robertelli v. N.J. Office of Attorney Ethics, 248 N.J. 293, 258 A.3d 1059 (N.J. 2021) a paralegal’s direct Facebook friend request to a plaintiff on behalf of defense counsel triggered an ethics investigation, because it involved direct contact without proper disclosure and risked violating New Jersey RPC 4.2 and related supervisory obligations.
Attorneys in all jurisdictions should avoid social media interactions that could be construed as unauthorized contact with represented parties and should supervise and direct all staff conducting social media research.
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Advising Clients About Social Media Content
Attorneys may advise clients on using privacy settings but must not encourage deletion of relevant posts once litigation is likely, as doing so may constitute spoliation. Ethics opinions recognize that attorneys can advise clients to tighten privacy settings but not delete evidence.
Ethical issues also arise in protecting confidentiality, avoiding misleading communications, and ensuring social media use does not inadvertently breach professional conduct rules.
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Sanctions and Case Law Trends
Some sanctions and related developments to be aware of:
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Allied Concrete Co. v. Lester, 285 Va. 295, 736 S.E.2d 699 (2013): Significant sanctions where counsel instructed a client to delete Facebook photos, resulting in spoliation findings.
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Gatto v. United Air Lines, Inc., Case No. 10-cv-1090-ES-SCM, 2013 WL 1285285 (D.N.J. Mar. 25, 2013): Adverse inference ordered where a plaintiff deactivated his social media accounts after discovery requests were served.
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Courts have sanctioned attorneys for improper juror social media research, including monetary sanctions, where LinkedIn juror research violated court guidance or ethical norms. It is noteworthy that if a jury consultant is engaged and that consultant violates ethical rules, those violations may come to bear upon counsel and/or the client. Attorneys must document their instructions to the consultant including confirmation of the boundaries of their investigative techniques.
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While not specific to social media, the broader litigation landscape includes sanctions for e-discovery failures and failure to preserve evidence, as established in cases like Zubulake v. UBS Warburg, 217 F.R.D. 309 (S.D.N.Y. 2003), which underscores the duty to preserve ESI generally, including digital sources such as social media.
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Practical Recommendations for Clients
To avoid sanctions and ethical pitfalls law firms must have responsible social media policies that apply firm-wide and are documented throughout, and include:
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Immediate Preservation – As soon as litigation is anticipated, preserve all social media content that could be relevant and do not delete or alter posts. Issue litigation hold notices that include social media.
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Documentation and Capture – Screen capture and date-stamp any relevant social media content early and maintain logs of all preservation and collection steps.
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Ethical Research Practice – Conduct only public information searches; avoid deceptive access methods or communications with adverse parties online.
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Privacy Settings vs. Deletion – Advise clients on privacy settings but never advise deletion of relevant content that might be subject to a duty to preserve.
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Supervision and Training – Ensure all staff and vendors conducting social media investigations are properly trained and supervised to avoid collective ethical violations.
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Conclusion