The age of social media has brought with it great changes to the way law is practised, especially regarding discovery and evidence.
In an era in which many people post their lives to the internet in almost real time, the chances of something detrimental to a court case turning up on a public platform are significant.
Along with that comes the question as to whether solicitors can advise clients to ‘clean up’ a profile, or delete unhelpful posts. While this might be seen as being in the client’s best interests, it constitutes unethical behaviour on the part of the solicitor, and as a recent American case shows, it can be immensely damaging to the client.
In the case of Fast v GoDaddy.com,1 the plaintiff had injured her knee in a skiing accident and had undergone surgery. She claimed that her employers (GoDaddy.com) pressured her into returning to work prematurely, resulting in her developing complex regional pain syndrome.
While still employed at GoDaddy, the plaintiff started coordinating with a co-worker to gather instant messages from a work messaging account for use in potential litigation. During this process she exchanged hundreds of messages with her co-worker via Facebook Messenger, the Telegram app and another message service.
When the matter progressed to discovery, the plaintiff did not disclose these messages to her lawyer and did not produce them via the discovery process. At some point during the course of the litigation the plaintiff used the ‘unsend’ feature on Facebook to recall over a hundred messages, and also deleted messages from Telegram. Evidence that the messages had existed at some point was, however, available from the plaintiff’s co-worker’s disclosed material.
The defendants made application to have the plaintiff sanctioned for this behaviour. The court found the plaintiff had a duty to preserve the messages once she knew or should have known that they may have been relevant to the future litigation.
The court found that the plaintiff deleted the Facebook posts with an intent to deprive defendants of their use in the litigation due to:
- the likely relevance of the messages
- the fact the plaintiff knew the messages could be useful to the defendants
- the fact the plaintiff permanently deleted the messages rather than archiving them
- the implausibility of the plaintiff’s stated explanation for the deletion.
The court also found that she had altered and fabricated various messages and posts.
Ultimately, the court did not dismiss the suit as requested by the defendants, but imposed sanctions, including the following:
- the court give an adverse inference jury instruction at trial based on the plaintiff’s actions in deleting/altering/fabricating her social media posts and messages
- the defendants be permitted to inform the jury of the plaintiff’s undisclosed ‘redactions’ from her Facebook posts
- the court require the plaintiff to pay some/all of the defendants’ costs associated with preparing for and litigating the motion for sanctions and related hearings/discovery issues
- the defendants be allowed to conduct a forensic review of the plaintiff’s electronic devices.
These sanctions will no doubt be detrimental to the plaintiff’s case, and the costs order will likely be significant. The case stands as a cautionary tale against a client ‘cleaning up’ their social media activities and profiles, and it flows from this that a solicitor should never instruct a client to do so.
While Queensland has no equivalent of the statutory duty to preserve information that the court in this case considered, the prudent course of action would be to proceed on the assumption that it will take a similar view. An ethics note on this issue has been published and practitioners should ensure that neither they nor their clients engage in any such activities.
To ensure we (and our clients) stay the right side of the ethical boundary in relation to discovery and social media, we need to be proactive. Clients must be encouraged to disclose to their solicitors all of their relevant social media activity, and be advised they should not be deleting anything – even if it is problematic. A solicitor who instructs a client to delete, alter or fabricate messages and posts, or to recall messages already sent, can expect no sympathy from the court when the activity inevitably comes to light.
Shane Budden is a Special Counsel, Ethics, with the Queensland Law Society Ethics and Practice Centre.
1 No. CV-20-01448-PHX-DGC (D. Ariz. Feb. 3, 2022).