PBCBA BAR BULLETINS pbcba_bulletin_March 2019 | Page 18

legal duties of preservation of evidence,
regardless of privacy settings.
Privacy settings will not prevent the
discovery of the social media content if
a discovery request is shown to meet the
normal discovery principles regarding the
production of discoverable evidence; nor
will privacy settings translate to a privacy
interest by the client as a way to protect the
social media data when the information is
posted on public sites and can be copied
without limits by other users. Nucci v.
Target Corp ., 162 So. 3d 146 (Fla. 4th DCA
2015).
While it appears, an attorney has the most
leeway when instructing a client regarding
their social media activity pre-litigation, one
should err on the side of caution concerning
a client’s social media information at any
stage during the legal matter. It seems that
altering privacy settings at any stage of a
legal matter is acceptable, but removal and
deletion of social media content is an area
of the law that is still fairly underdeveloped
with little support in case law. If a lawyer
chooses to instruct a client to remove or
delete content, it seems the courts will favor
a standard requiring a backup or copy of the
removed or deleted information be created.
Removal and deletion of information
appear to go hand and hand with the duty
to preserve the same, even if just as a
precaution.
PBCBA BAR BULLETIN
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