December 8, 2010
Social Networking, E-Discovery, and the Risks of the Internet
I am in Washington, D.C., where I will moderate an ethics panel at the Energy Bar Association's Mid-Year Meeting. The panel will feature two speakers: (1) David Bloom, a partner in the D.C. office of Mayer Brown and (2) Justice Dan Crothers of the North Dakota Supreme Court. Mr. Bloom will discuss legal ethics and social networking, and Justice Crothers will discuss ethics in E-Discovery.
As part of preparing for the panel, two items caught my eye that I thought were worth sharing. First is an article about a possible Kentucky rule that might regulate legal comments made on social networking sites such as Facebook. According to an ABA Journal article (here), "The bar has proposed a regulation that would bar solicitations through social media unless lawyers pay a $75 filing fee and permit regulation by the bar’s Advertising Commission." The article goes on to note that there would be some exceptions:
One exception is made for lawyer blogs that communicate in real time about legal issues, as long as there is no reference to an offer of legal services. “Communications made by a lawyer using a social media website such as MySpace and Facebook that are of a nonlegal nature are not considered advertisements,” the proposal says. “However, those that are of a legal nature are governed by [the advertising rules].”
The other item of note is a case from New York, Romano v. Steelcase, Inc., in which a defendant company sought an Order granting it access to "Plaintiff's current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information upon the grounds that Plaintiff has placed certain information on these social networking sites which are believed to be inconsistent with her claims in this action concerning the extent and nature of her injuries, especially her claims for loss of enjoyment of life." The court explained that
when Plaintiff created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings. Indeed, that is the very nature and purpose of these social networking sites else they would cease to exist. Since Plaintiff knew that her information may become publicly available, she cannot now claim that she had a reasonable expectation of privacy. As recently set forth by commentators regarding privacy and social networking sites, given the millions of users, "[i]n this environment, privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking."
I am not sure I'd necessarily end up here, but I expect that a lot of courts, and probably most, would end up here. It's worth knowing that at least one court already did.
(H/T: Thanks to Legalethics.com for the links)
[Update: This article from Gregory M. Duhl and Jaclyn S. Miller, Social Networking and Workers’ Compensation Law at the Crossroads, is a good resource on a lot of these issues. The article will appear in the Pace Law Review.]