Facebook and Litigation

An article in the September 11, 2009 New York Law Journal, by Daniel L. Brown and Aimee R. Kahn on "The Perils of Facebook." (free with a trial registration)

As a result of the explosion in popularity of social networking Web sites such as Facebook and MySpace, where members "post" and share information about themselves as never before, attorneys, and particularly litigators, have begun to take note of the potential utility of this new medium. ...some recent court proceedings demonstrate that an adversary's MySpace or Facebook page may sometimes contain the all-important smoking gun, and such sites can potentially be used to serve legal process on an adversary. At a minimum, understanding the potential uses of social networking sites should be considered when preparing for litigation.

However, the ability to use information discovered from a social networking Web site as evidence has not yet been fully tested in courtrooms, and attorneys must understand the evidentiary and ethical implications of seeking and discovering such evidence. In fact, at least one ethics opinion has already addressed issues arising from counsel's potentially unethical use of such a site to discover evidence.

One thing is clear: Attorneys and their clients must become acquainted with the potential usefulness of social networking sites, as well as the potential hazards and limitations.

The article goes on to review a series of criminal and civil cases and evaluate how the rules of evidence, whether federal or state, either allow or disallow the photos or other material from the social networking sites. The authors include footnotes to the citations for the cases they discuss. Sometimes, courts, in allowing alternative service of process, allowed the litigators to use Facebook as one substitute service of process, reasoning that it would be more likely to be successful at reaching the party than other, more traditional means. The authors provide some final analysis:

Among other things, gathering evidence on a person's profile page poses Fourth Amendment privacy concerns, because the Web site member may claim that he or she has a reasonable expectation of privacy for the information posted on his or her profile page, or on a "friend's" profile page. Therefore, one must consider:

1. whether there is a reasonable expectation of privacy on a social networking site accessible to the public at large; and

2. whether there is a reasonable expectation of privacy on a social networking site that has been secured by some form of privacy protection, the later creating greater concern.

Moreover, in addition to having to satisfy the evidentiary standard for "relevance," discussed above, evidence gathered on a social networking site must also be properly authenticated and may be inadmissible for numerous evidentiary reasons such as hearsay if, for example, a third party "wall post" or "comment" is offered into evidence. While these areas have not yet been developed by case law, they must be carefully considered.

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 the Philadelphia Bar Association Professional Guidance 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." (snip)

Finally, attorneys themselves must also be careful about their own profile pages, because even judges are turning to MySpace and Facebook to gather "impeachment" evidence to use against attorneys appearing in their courtrooms. For example, recently, a state court judge in Texas used Facebook to discover information and to admonish attorneys appearing in front of her. The attorney in question had asked for a continuance from the judge due to a death in the family, but was later sanctioned by the judge when it was discovered that the attorney's Facebook profile page revealed a week full of drinking and partying.

That last paragraph is a wake-up call! I advise interested readers to go to the full article because I deleted a lot of footnote references for ease of reading. You will want to look at the entire article and note the actual citations if you want to follow up on the legal issues here. The link above takes you to the home page of the New Your Law Journal, where you will have to scroll down to the headline on the right, Savvy Use of Social Networking Sites, which will lead you to the article, where you must either enter your registration info or register for the first time to read it. I can't link to the article itself for you. Sorry 'bout that!