08 Nov Spoliation of Social Media Evidence: Think Before You Delete
Because of the ubiquity of the World Wide Web in our daily lives, social media can be a veritable minefield if you have a pending legal case, or are being sued in civil court for one reason or another. Recent rulings in the past half-decade has seen to it that spoliation of social media evidence is just as ill-advised as trying to erase parts of a defendants past as relates to a pending case. This means that if you’re a defendant or litigant, your social media life cannot automatically be excluded from scrutiny in a court of law.
How Does Spoliation of Social Media Evidence Affect Lawyers?
Although your attorney can, of course, offer advice on managing your social media accounts in the wake of a case, she cannot protect against the prosecution’s use of preexisting social media activities of the defendant. This means that previous Facebook posts (for example), Twitter tweets, or even social blogs cannot be purged in order to present you in a more beneficial light; your social media life, in effect, cannot be made selective.
Your attorney is thus barred from making your social media activities inaccessible to the other party; nor can old posts be discarded or made private in the wake of a case. Doing this would amount to spoliation if the social media information is deemed to be relevant.
As such, although your attorney cannot change, eliminate or attempt to conceal your past social media activity, she can – and is legally obligated to, in fact – apprise you of information on possibly restricting your activities on the various platforms until the conclusion of the case. This pertains to the advice that she should give you; spoliation of social media evidence also extends to you – you cannot delete material that could be later argued constitutes a reasonable effect on the case.
Is Spoliation of Evidence Tough to Prove?
In short – do not bank on this. Do not delete anything; the court could very well argue that you and your attorney thought it could be relevant to the case, which is why you deleted it in the first place. The wording of the prohibition hinges on “reasonable”; and, if you deleted the information, then you could be held responsible because the act of deletion suggests your assessment.