21st Century Communication
Dave Chapelle did a skit years ago featuring an advertisement for a “Home Stenographer” depicting scenes where people would hire a court reporter to basically follow them around and record their everyday interactions; every conversation with a spouse, argument at work or business transaction would be instantly recorded and available for reference at a later date. This bit of humor came out around the turn of the century and has proven to be prophetic in the sense that most of us are constantly generating a written record of our interactions every day via text messaging, emails and social media accounts.
Stories abound about the college kid who posts something silly (or stupid) on their Facebook page only to have potential employers “creep” on their accounts and reject that applicant. It is now also commonplace for electronic communications to have a direct impact in all types of legal proceedings whether they be criminal defense, family matters or civil litigation. The purpose of this article is to give the potential client a word of caution regarding some of the legal pitfalls in the 21st century social media jungle.
Clearing up the Confusion
Judges, attorneys and juries are constantly grappling with the spoliation, or destruction, of evidence. The Pennsylvania courts have said that when a person reasonably anticipates litigation, they have an “affirmative duty to preserve relevant evidence”. If the court finds that evidence was intentionally destroyed (like a deleted text thread or Facebook page), the judge may throw out your case, exclude other evidence or permit a jury to infer that the evidence was destroyed in order to hide something. On the other hand, the court has found that sanctions were not called for when the texts that were deleted were not relevant, the deletion was a routine matter and not motivated by bad faith.
Of course the obvious question is when is someone supposed to reasonably anticipate they are going to end up in court and not delete their electronic communications? It’s a tough question where every situation is different. Hopefully you have not written or posted anything damaging to your case but the person on the other side has. Obviously, this is good for your case and your lawyer will hopefully use the information to your maximum advantage. Or maybe there are some questionable things you did post and you want to delete them because you didn’t mean them or you don’t want them taken out of context and used against you. This comes up quite a bit in custody proceedings where emotions are running high.
Modern Communication Tips
The rub is your lawyer cannot ethically tell you when to delete or destroy evidence. What a good attorney can do though is help you deal with any negative electronic communications that haven’t been already deleted and put them in the proper context and minimize the potential damage to your case. This all being said, a good rule of thumb is to not post compromising things on social media, sleep on that angry email and count to ten before texting back.
Count on Mooney
We stand ready to assist you in your time of need and you know you can Count on Mooney, whatever your legal need. Mooney & Associates has 15 offices spread throughout Central Pennsylvania including: