Social Networking Sites and Litigation

Savvy Use of Social Networking Sites is an important Sept. 8, 2009 New York Law Journal article for scholars and lawyers to be aware of. (free registration required). It discusses how attorneys can make use of this new medium in practice. Evidence such as photographs may be obtained from such sites. Additionally, the authors question whether it is possible that service of process may be accomplished, at least in extreme cases, through sites such as face book. The authors review several cases and issues that has already been litigated and note that the use of Face Book may raise ethical issues for attorneys. As the authors state:

Indeed, a recent ethics opinion dictates that attorneys must be careful when gathering evidence from a person's social networking profile page. In Ethics Opinion No. 2009-02 (Opinion) the Philadelphia Bar Association Professional Guidance Committee (Committee) addressed the propriety of an attorney discovering information from another person's Facebook profile page. In that case, in order to discover information contained on an adverse witness' Facebook profile page, the attorney asked someone to send a "friend request" to that witness in order for the attorney to discover impeaching information.

According to the Opinion, an attorney must disclose his or her true intentions when attempting to access a member's profile page. The Committee cited to its rule of professional responsibility regarding non-lawyer assistants, which provides that lawyers are responsible for the actions of third party non-lawyer assistants. The Committee also noted that other ethical rules prohibit attorneys from "engag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentation."

Based on the foregoing, the Opinion holds that an attorney cannot use a third party to send a "friend request" to an adverse witness to search for impeaching evidence on the witness' otherwise private Facebook profile page. The Committee said that such actions would "omit[] a highly material fact, namely, that the third party who asks to be allowed access to the witness' pages is doing so only because he or she is intent on obtaining information and sharing it with a lawyer for use in a lawsuit to impeach the testimony of the witness."

The Committee disagreed with the argument that such conduct is akin to the practice of videotaping a personal injury plaintiff because "the videographer does not have to ask to enter a private area to make the video," and stated that "[d]eception is deception, regardless of the victim's wariness in her interactions on the Internet and susceptibility to being deceived."

As demonstrated above, social networking sites can potentially contain a plethora of information useful for litigation, but attorneys must understand the ethical and evidentiary rules associated with discovering such evidence.

Law review commentary on this issue would be most welcome.

Mitchell H. Rubinstein