LAW-False Friends: the Ethical Limits of Discovery via Social Media

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False Friends: the Ethical Limits of Discovery via Social Media


Jonathan I. Ezor

Law Technology News

03-07-2012


As more people of every demographic become regular users of social media services, evidence arising out of social media postings is playing a much greater role in litigation. Plaintiffs in personal injury cases are being presented with Facebook photos showing them doing activities they claim their injuries made impossible, location-tagged tweets may establish (or destroy) alibis, and blog posts may breach confidentiality or provide case-critical facts.

While publicly accessible information is likely "fair game" for evidentiary use, and private posts (whose distribution may be limited to "friends," "followers", or other designated individuals) can -- and often should -- be included in discovery requests to opposing counsel, there may be times when attorneys would prefer to do their own investigations of any non-public social media posts rather than disclose their strategies by making open-ended discovery queries. In such circumstances, attorneys may be tempted to try to "become friends" with an opposing party or witness on a service like Facebook and thus gain access to posts and files not available to the general public. This could be done by the attorney directly, or by an investigator or non-lawyer at the attorney's direction, and might not even require making false statements to the user receiving the friend request; many users will accept friend requests from anyone, or from someone whom they believe may be familiar to them from some context, without needing specific (and potentially dishonest) details about any past association.

Such "false friending," though, has been rejected as unethical practice by multiple state and local bars. Whether the contact is with a party or a witness, is done by or at the direction of the attorney, and involves false information or merely not disclosing the real reason for (and source of) the friend request, these investigations are generally viewed as impermissible. The opinions are often based on the local version of Rules 4.1 (Truthfulness In Statements To Others), 4.2 (Communication With Person Represented By Counsel), and 8.4(c) (prohibiting "conduct involving dishonesty, fraud, deceit, or misrepresentation") of the Model Rules of Professional Responsibility. Examples of these opinions include Opinion 843 (9/10/10) of the New York State Bar Association, Opinion 2009-02 of the Philadelphia Bar Association's Professional Guidance Committee, and Formal Opinion 2010-2 of the Association of the Bar of the City of New York's Committee on Professional Ethics.

One related question is whether, if an attorney does do (or arrange for) such a false friending in violation of ethics rules, the evidence gathered is admissible. For governmental attorneys, such violations could fall under the general principles of the exclusionary rule and deny admissibility. For private attorneys, however, state law may permit use of the information gathered even if the lawyer violated ethics rules to do so, or may offer only limited and specific exclusions. (§4506 of New York's Civil Practice Law and Rules, for example, provides for exclusion of privately gathered evidence only if done through illegal wiretapping; it is unclear whether and how "false friending" could fall under the statutory definition of wiretapping.)

As a general matter, though, attorneys seeking information or evidence should stick to searching publicly available social media posts (Topsy.com is a good search engine for this purpose), while remembering to include social network posts and media uploads in discovery requests. They should also be sure to search through their own client's social media history, and ask about potentially damaging posts that might be requested by the other side, so as not to be surprised before or at trial. Finally, attorneys who wish to get the most out of social media on their clients' behalf (as permitted by ethics rules, of course) would be well served to become social media users themselves, so they can better know what may or may not be available to the public or otherwise.

Jonathan I. Ezor is director of the Touro Law Center Institute for Business, Law and Technology and serves as counsel at New York-based Olshan Grundman Frome Rosenzweig & Wolosky. Touro Law Center students Jesseka Green and Jennifer Maldonado contributed research to this report.



Source: www.law.com