Do not delete that post or account if you are in litigation!
“The law has a right to every man’s evidence.”
The old saying means that when you are in possession of something that could be used as evidence, and you anticipate that you are going to be involved in a lawsuit that may have even a tangential relationship to that evidence, you have a duty to preserve it.
If you do not preserve that evidence, the court that ultimately hears that lawsuit could punish you with sanctions. In egregious enough cases, the sanctions can be really severe — such as saying “you lose” for that reason alone.
In the age of social media, this rule can present quite a problem and here are 2 succinct examples of things you cannot do if you anticipate you are going to be involved in litigation:
- You cannot permanently delete your social media account if it contains potentially relevant evidence. (read this post for case explaining why)
- You cannot selectively delete individual posts from your social media account if those posts could potentially be relevant to the lawsuit. (read this post for case explaining why)
About the author
Shawn Tuma is a lawyer who is experienced in representing and advising clients on digital business risk which includes complex digital information law and intellectual property issues. This includes things such as trade secrets litigation and misappropriation of trade secrets (under common law and the Texas Uniform Trade Secrets Act), unfair competition, and cyber crimes such as the Computer Fraud and Abuse Act; helping companies with data security issues from assessing their data security strengths and vulnerabilities, helping them implement policies and procedures for better securing their data, preparing data breach incident response plans, leading them through responses to a data breach, and litigating disputes that have arisen from data breaches. Shawn is a partner at BrittonTuma, a boutique business law firm with offices near the border of Frisco and Plano, Texas which is located minutes from the District Courts of Collin County, Texas and the Plano Court of the United States District Court, Eastern District of Texas. He represents clients in lawsuits across the Dallas / Fort Worth Metroplex including state and federal courts in Collin County, Denton County, Dallas County, and Tarrant County, which are all courts in which he regularly handles cases (as well as throughout the nation pro hac vice). Tuma regularly serves as a consultant to other lawyers on issues within his area of expertise and also serves as local counsel for attorneys with cases in the District Courts of Collin County, Texas, the United States District Court, Eastern District of Texas, and the United States District Court, Northern District of Texas.