Friend or Foe? Social Networking and E-Discovery

It took several years for U.S. law to catch up with the challenges of electronically stored information and communication. For the most part, though, it has. But now we have a new disrupter in electronic discovery: social networking on sites such as Facebook. Social networking raises a multitude of new legal issues, two of which are discussed here.

Friending under pretext

If a personal injury defense attorney hires an investigator to take videos of a plaintiff who claims he is incapacitated due to injury, and the investigator catches that plaintiff playing basketball, few courts would disallow that evidence and none would see any reason to discipline the defense attorney.

However, if that same defense attorney asks his assistant to "friend" the plaintiff on Facebook, so as to obtain information that the plaintiff doesn't make available on his page to nonfriends, that crosses the ethical line, said the Philadelphia Bar Association opinion 2009-02, dated March 2009.

The defense attorney inquired whether it would be permissible to have his paralegal ask the plaintiff to be her "friend" on Facebook. Having deposed the plaintiff already, the attorney anticipated that she would recognize his name and would not accept his "friend request." But he figured that the plaintiff otherwise quite freely accepted friend requests even from people whose names she did not recognize.

A Facebook "friend" can see more of what someone has posted than a nonfriend visitor to that profile. All that a nonfriend can see is the mere fact that the person has a page and little else. While privacy settings can now be calibrated to different degrees even within the bounds of "friend," friend status nonetheless opens the door for greater access to personal information.

The bar ruled that subterfuge friending would violate Pennsylvania Professional Conduct Rule 8.4 "because the planned communication by the third party with the witness is deceptive. It omits a highly material fact, namely, that the third party who asks to be allowed access to the witness's 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 omission would purposefully conceal that fact from the witness for the purpose of inducing the witness to allow access, when she may not do so if she knew the third person was associated with the inquirer and the true purpose of the access was to obtain information for the purpose of impeaching her testimony. ..."

The plaintiff's apparent lack of concern for her own privacy, as evidenced by her demonstrated willingness to "friend" strangers, could not excuse this course of action by the inquiring lawyer.

"Deception is deception, regardless of the victim's wariness in her interactions on the Internet and susceptibility to being deceived. The fact... that the witness is perhaps insufficiently wary of deceit by unknown Internet users, does not mean that deception at the direction of the inquirer is ethical."

Dealing directly with the analogy of the private investigator with a video camera, the bar committee stated, "[I]n the video situation, the videographer simply follows the subject and films him as he presents himself to the public. The videographer does not have to ask to enter a private area to make the video. If he did, then similar issues would be confronted, as for example, if the videographer took a hidden camera and gained access to the inside of a house to make a video by presenting himself as a utility worker."

A treasure trove of discoverable information

Attorneys making discovery requests in litigation now have to consider whether and to what extent they will seek information from social networking pages.

There are two ways to get information from social networking sites. The first is to search for it directly and see how much information can be obtained without resorting to an ethics-violating friending subterfuge. There's nothing wrong with obtaining information that is publicly available; if an adverse party, witness or custodian of data exposes elements of his or her personal universe for any and all to see on a social networking site, it is fair game.

The second way is by discovery request, interrogatory or deposition. If an individual has been identified as one of the key custodians of information in a corporate party to litigation, and that person's corporate e-mail is being produced, it should by now be standard to inquire if he or she used other personal e-mail services (e.g. Gmail, Hotmail, Yahoo) to communicate on business-related matters relevant to your litigation. This has to be taken even further now: Does this person have a social networking page, and if so, has this person communicated with anyone on the subject matter of this litigation using the messaging system within that site, and if so, please produce those messages.

Sometime in the not too distant future, litigation hold notices will include social networking pages.

Active in e-discovery since the mid-1990s, Cliff Shnier is an attorney and electronic discovery consultant based in Scottsdale, Arizona. He has owned a service bureau and has held senior roles with national e-discovery providers. A graduate of the University of Toronto Faculty of Law, Cliff actively practiced as a commercial litigator for 11 years. Contact him at cliff@cliffshnier.com.

Clifford F. Shnier

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