The Journal of American Law is a peer-reviewed journal and the only one of its kind in the country. The Journal is a law review focused on important legal issues ranging from complex litigation to Supreme Court rulings.
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10 Journal of American Law // Spring 2015 Social media is a potential gold mine for liti- gators. Many people treat their various social media presences or accounts as private. In fact, social media content is far more public and more permanent than many users real- ize. A post on a co-worker's Facebook wall, a tweet to Twitter followers, a photo shared with friends on Instagram, or even a restaurant re- view posted on Yelp, allows onlookers to peer into the life and thoughts of the author. Attorneys risk running afoul of ethical rules when they attempt to gather informa- tion from social media. As this breed of evi- dence foods into courtrooms across the na- tion, attorneys must educate themselves on their ethical responsibilities. the ABA model Rules Social media evidence can frequently be ob- tained through traditional discovery proce- dures (even if the Stored Communications Act 1 can make things complicated). Many attorneys 1 Te Stored Communications Act, 18 U.S.C. ยงยง 2701-2712, is addressed by Robert M. Freedman and Tara Taghvay in an article appearing in this issue of the Journal of American Law. may prefer to acquire this information outside of formal discovery. Tere are several reasons for this. One is the need to gather facts as a part of an initial investigation into a case be- fore a suit has commenced. If there is critical evidence on a social media profle, it is better to know about it early. Also, it is possible that the electronic nature of the evidence means that it might not exist when discovery begins. Te Internet is in constant fux, with fresh content appearing and old content disappearing daily. Potential evidence might be deleted or altered either inadvertently or intentionally. Rather than wait and see, many attorneys may prefer to capture the data before it disappears. Attorneys have an ethical duty to gath- er facts under the American Bar Association (ABA) Model Rules of Professional Conduct. 2 Rule 1.1 Competence requires a lawyer to pro- vide competent representation to a client, which includes legal knowledge, skill, thoroughness, and preparation. 3 Comment 5 to Rule 1.1 notes that thoroughness and preparation includes an 2 Model Rules of Prof'l Conduct (2013). 3 Model Rules of Prof'l Conduct R. 1.1 (2013). Beth C. Boggs is the managing and founding partner of Boggs, Avellino, Lach & Boggs LLC in St. Louis, Missouri. Her practice focuses on the defense of civil litigation matters, including premises liability claims, insurance coverage disputes, insurance fraud, transportation, employ- ment, construction defect, and professional liability. She recently received the President's Award from the Women Lawyer's Associ- ation of St. Louis. She is a graduate, magna cum laude, of Southern Illinois University at Carbondale. Steven A. Ahillen is an as- sociate attorney at Boggs, Avellino, Lach & Boggs LLC in St. Louis, Missouri. His practice focuses on insur- ance litigation and business litigation. He possesses a background in electronic discovery and litigation support. He graduated cum laude from DePaul Universi- ty College of Law, where he also earned a Certifcate in Business Law. SUMMARY Te social media revolution has redefned the way people communicate. Society utilizes social media to share, and businesses use it to connect with their customers. Social media content potentially is valuable evidence that presents opportunities as well as challenges. Attorneys have a responsibility to acquire a familiarity with this new technology, including the host of ethical hazards that accompany it. Te American Bar Association most recently amended the Model Rules of Professional Conduct in 2013. However, not a single revision provided specifc guidance on social media. Given this decision, attorneys must apply traditional ethical principles to this new technology. Pertinent issues for social me- dia discovery include the acceptable means of acquiring evidence from an opposing party's social media accounts, advising clients on their own Internet presence, and preserving relevant evidence. Local bar associations have grappled with these issues in recent years. Teir guidance is valuable but not always consistent. Te common theme is that attorneys must balance carefully the duty to provide ef- fective representation with the principles of truthfulness and fairness. Te failure to adhere to ethical rules regarding social media discovery can have severe consequences, including sanctions and disciplinary ac- tion. Tose who familiarize themselves with the rules and stay abreast of developments in technology can avoid the pitfalls of this new medium. Tose who ignore them do so at their own peril. Ethical Pitfalls in Social Media Discovery A Review of the Hazards Involved in Obtaining and Preserving Social Media Evidence By Beth C. Boggs and Steven A. Ahillen CiviL LitigAtion & PRoCeDuRe