"x x x.
As an attorney, what can and
what should you do about your client’s
social media activity?
Can you advise your client to remove
content, or change privacy settings
so opposing counsel
and others cannot snoop?
But what about existing social media?
Can it be made private?
Can it be purged?
The answer to the last question is
an emphatic “no.” Rule 3.4 of the
Massachusetts Rules of Professional
Conduct provides, in relevant part,
that “[a] lawyer shall not:
(a) unlawfully obstruct another
party’s access to evidence or
unlawfully alter, destroy, or
conceal a document or other
material having potential evidentiary
value. A lawyer shall not counsel
or assist another person to
do any such act; ….” M.R.C.P. 3.4.
To purge damaging information on
social media would, if relevant,
likely constitute spoliation.
See Scott v. Garfield, 454 Mass. 790,
798 (2009) (“The doctrine of
spoliation permits the imposition
of sanctions and remedies where a
litigant or its expert negligently or
intentionally loses or destroys evidence
that the litigant (or expert) knows or
reasonably should know might be
relevant to a possible action,
even when the spoliation occurs before
an action has been commenced.”).
x x x."
an emphatic “no.” Rule 3.4 of the
Massachusetts Rules of Professional
Conduct provides, in relevant part,
that “[a] lawyer shall not:
(a) unlawfully obstruct another
party’s access to evidence or
unlawfully alter, destroy, or
conceal a document or other
material having potential evidentiary
value. A lawyer shall not counsel
or assist another person to
do any such act; ….” M.R.C.P. 3.4.
To purge damaging information on
social media would, if relevant,
likely constitute spoliation.
See Scott v. Garfield, 454 Mass. 790,
798 (2009) (“The doctrine of
spoliation permits the imposition
of sanctions and remedies where a
litigant or its expert negligently or
intentionally loses or destroys evidence
that the litigant (or expert) knows or
reasonably should know might be
relevant to a possible action,
even when the spoliation occurs before
an action has been commenced.”).
x x x."
