News flash: social media posts relevant to the litigated topic are discoverable. A prior post discussed a $542,000 sanction entered against an attorney, personally, for instructing his client to delete relevant social media posts after receiving a request to produce them. With that in mind, I was in the office of a local lawyer last year when I saw this:
I had a few thoughts. First, who still uses MySpace? Second, this would be a great post the day before Valentine’s Day when there are probably a few people who are doing their best to erase evidence of prior lives. Third, be careful what you instruct clients to do. I could not afford a $542,000 sanction and I doubt most could.
Despite that, I was made aware of one case last year where the plaintiff had a public Instagram account that the defense monitored. One day he had X number of pictures, then he produced 13 fewer that the defense found out were deleted from Instagram. Motions followed and plaintiff was lucky to avoid sanctions because (apparently) he was able to retrieve the 13 missing pictures, verify from Instagram these were the missing pictures, and produce them. Should plaintiff have been sanctioned? I suspect so, even if the posts were retrieved, because something about this fact pattern seems fishy to me.
 June 27, 2016 hearing in A-14-701330-C.