Today’s edition: Can your fictional lawyer tell a fictional character to take down incriminating photos on Facebook? And does a party in a civil lawsuit have to produce social media records?
Short answer: Hey, why not? It’s fiction!
Long answer: 1) Not if you want the lawyer to be smart, upstanding, law-abiding, honorable, ethical, and a candidate for Girl Scout troop leader of the year. And you do, don’t you? That is, of course, a rhetorical question. 2) it depends.
As you’ve heard me say before, your characters can make bad choices about the law and legal ethics, but as the writer, you need to know the consequences. The basic rule is that a lawyer cannot advise a client to do something illegal, including destroying potential evidence. And that applies whether the evidence is a blood-soaked shirt or a photo showing himself with stolen cash. That last is a real-life example, mentioned in a recent article in NW Lawyer, the Washington State Bar Journal, analyzing a lawyer’s ethical duties. In my opinion, there’s no real debate: If a lawyer anticipates that a civil suit or criminal charges may be filed, even if they haven’t yet been filed, she cannot advise her client to take down an account or a posting, and should affirmatively advise him to not do so. Continued posting is probably okay, as long as the lawyer makes very clear that the client should not post on any thing remotely related to the case — because that can be hard to define, I’d go further and suggest a social media moratorium, except perhaps for business purposes if the legal issues didn’t involve the business.
So, does a party to a civil lawsuit have to provide the other side access to his or her private Facebook account? (Or Twitter, or Instagram, or any other social media platform.) I researched this issue when the plaintiff’s lawyer in a personal injury case requested all social media account info, including passwords, and postings from my client, a truck driver and defendant in a suit over a relatively minor car-truck collision. My client did have a private Facebook page; as soon as suit was filed, I advised him to make no updates or changes to it, and not to post on it, and he complied. (Although some changes aren’t in the account holder’s control; he’d just gotten married, and when his wife changed her page to mention marrying him, the change occurred on his, too — but I wasn’t worried about explaining that if we had to!)
The general rule, in Montana and other states, is that a party can’t go on a fishing expedition in social media accounts any more than it could do so in other records. Account holders are allowed a certain measure of privacy. Note that an account isn’t protected simply because it’s been designated private. In most states, courts generally require a requesting party to make “a threshold showing that publicly available information on those sites undermines the [other party’s] claims.” Keller v. National Farmers Union Property & Casualty Co., decided by the U.S. District Court for Montana, Jan. 2, 2013
In our case, the plaintiff made no effort to show that the driver’s postings were relevant, and I had no trouble refusing access. (Never would I have provided passwords without a court order.) But situations differ, and so does state law. If a party’s physical condition or injuries are at issue, I can see a court granting a request to produce photos posted online after the date of the alleged injury — it’s relevant to know whether a plaintiff claiming a wrist injury returned to her weekly bowling league shortly after the accident, or now sits on the sidelines lifting only a beer.
On a related note, Florida has recently enacted a law about digital access for personal representatives (executors in some places), holders of powers of attorney, guardians and the like. The law became effective on July 1 and It is going to be interesting to see how that plays out with social media providers the first time they receive Letters of Guardianship or Letters of Administration.
Thanks, Kait. You raise an important point: with most people having online accounts of some kind, and many having online banking and bill paying, after-death access is critical. In some instances, having account numbers, user names, and passwords will be sufficient, but in many situations, it won’t be. I can envision all kinds of complications — terrible for real life, but great for fiction! Thanks for mentioning it.
I found it interesting that there was a request for passwords. That seems well beyond the scope of what anyone would be entitled to. Discovery of the site, yes, but usually that would entail either access (as a “friend” to be able to view the site) or screenshots, no?
Micki, you’re right. The password request surprised me, too, and even I had thought access warranted, I would have done it through screenshots only, or through a static mirror copy of the page, which I think requires assistance from FB and can’t be done by the individual. That’s what’s been approved in other cases I’ve read.
Okay. Lesson learned. I’m going to be more and more careful about what I put out on social media (although I did share this post).