Peter Brown (NY) co-authored “Social Media Data: Discoverability and Ethics” in the December 14, 2010, issue of The New York Law Journal. In the article, the authors discussed: (1) court rulings that impact the discovery of social network accounts in civil litigation; and (2) decisions made by ethical bodies related to the informal discovery of social media accounts held by witnesses and unrepresented parties.
Given the widespread use of social media, lawyers recognize see social network sites as an “untapped repository of potentially discoverable information that could be used for impeachment purposes against parties and witnesses,” they explained. “Such data might include profile information, photos and videos, and comments and status updates concerning a user’s thoughts, activities and intentions.
“However, legal and ethical rules place certain limits as to how far attorneys may go to obtain such information, some of which is only available to social network ‘friends’ allowed access by the user,” they noted.
With respect to formal discovery, many rulings “suggest the basic rights of litigants to obtain relevant, discoverable information, whether in electronic or paper form, has not changed in the face of new technology,” although “the discovery of social network communications might be limited in scope by the trial judge based on the appropriate federal rules of civil procedure or similar state rules, and a party may move for a protective order when compelled to disclose sensitive or confidential information.”
As for informal discovery related to witnesses and unrepresented parties, the authors highlighted the complexity of the ethical issues at play. For example, an opinion issued by the New York City Bar indicated that rules pertaining to deceptive or misleading practices do apply to the methods used by attorneys to gather information online (for example, posing as a former classmate to obtain “friend” status with a witness in an effort to view his/her private profile).
At the same time, the state bar ethics committee for New York clarified that its rule “prohibiting deceptive practices would not be implicated by an attorney searching the public social media information of a party,” thus differentiating between a person’s public profile vs. the information available only to a user’s “friends.”
The article also pointed out that “there are also numerous ethical concerns for attorneys who use social media to interact with fellow members of the bar, advertise their services to the public, and educate clients and readers about legal developments.”
And as social network usage continues to increase, the authors concluded that, “Other ethical questions will certainly arise in the future.”