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Facebook Official: Is It Okay To Delete Social Media Content While In the Middle of a Lawsuit?

Facebook Official: Is It Okay To Delete Social Media Content While In the Middle of a Lawsuit?

You’ve been meaning to delete that colorful tweet you wrote after the Bucs blew yet another huge lead and you’ve changed your mind about that #ThrowbackThursday Instagram post from your college spring break trip to Cancun, but you just haven’t gotten around to tapping the “delete” button. If you find yourself in the early stages of a lawsuit, can you delete those embarrassing Facebook pictures from the office Christmas party? You’re justifiably ashamed of the dance moves they depict, and you’d rather not see them projected onto a courtroom screen for a jury of your peers to analyze in excruciating detail. This article shines some light on what the Florida Bar thinks about all of this.

Can You Delete Content from Your Social Media Account with a Lawsuit Pending?

In the past, if you brought this question to your lawyer, she would have bad news for you. Up until very recently, lawyers could not ethically advise their clients to delete content from their social media accounts in anticipation of litigation, for fear of being sanctioned by the court for the destruction of evidence.

This month, the Florida Bar’s Board of Governors ruled that your lawyer can advise you to “clean up” your social media profiles in anticipation of litigation to “remove embarrassing information that the lawyer believes is not material to the litigation matter,” and even to “change privacy settings on the client’s social media pages so that they are not publicly accessible.” According to the Florida Bar, your lawyer can, under certain circumstances, advise you that it’s okay to delete those Facebook pictures, because to the best of her knowledge your dance moves have not been criminalized (we’ll be contacting our congressional representative to see if we can’t get that fixed).

When an Attorney Can Advise You to Delete Social Media Content

There is an important caveat to the Bar’s ruling: when your lawyer advises you to remove social media content, “an appropriate record of the social media information or data must be preserved if the information or data is known by the lawyer or reasonably should be known by the lawyer to be relevant to the reasonably foreseeable proceeding.” What it means for social media content to be “relevant to the reasonably foreseeable proceeding” is a question of fact that courts must decide on a case-by-case basis. Therefore, to preclude creating liability on your behalf, your lawyer will almost certainly want to create a record that preserves your social media profile in its embarrassing, unaltered state – just in case a judge asks to take a look.

Should you have any further questions regarding actions you are taking in anticipation of litigation, please call Englander Fischer at 727-898-7210 to see how one of our attorneys can assist you.

About the Author:

Andrew J. Davis is part of Englander Fischer’s business litigation team, which represents commercial, non-profit and institutional clients, as well as high net-worth individuals, in a wide variety of business and commercial matters. Andrew is St. Petersburg native and a graduate of the University of Florida’s Frederic G. Levin College of Law. He can be reached at adavis@eflegal.com.

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This publication is for general information only. It is not legal advice. Legal counsel should be contacted before any action is taken that might be influenced by this publication.

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