Our social media posts reveal a lot about us and, while there are control mechanisms for keeping information private, there is a wealth of information readily discoverable. This makes the Internet fertile ground for lawyers seeking information about adverse parties. With all of this information available in cyberspace, it is increasingly important for lawyers to keep ethics in mind.
The collection of social media evidence requires an appreciation for and understanding of the difference between public and private information. Public information is freely available and readily accessible. Just type in the name of an individual in your search engine of choice, and voila, information about the individual is returned via sources like blog posts, YouTube videos, public Twitter feeds, public Facebook pages, and websites where the sole function is to search for and compile information about people.
Searching and archiving an individual’s social media from public sources pre-litigation is invaluable for many reasons. Doing so has the potential to help you build your case if relevant and unfavorable information exists. Another benefit is the opportunity to cross-reference the archived pre-litigation and post-litigation social media evidence to determine whether data has been deleted. Uncovering inconsistencies could mean data was possibly deleted once litigation began, which would likely result in sanctions for the opposing party. With this in mind, it is wise to preserve what information is available, either by utilizing a third-party vendor that specializes in archiving websites and social media pages, or by doing so in-house.
Searching for information about individuals through publicly available sources doesn’t run afoul of the ethical standards attorneys need to uphold. Ethical considerations may, however, come into play when the information sought is private. In contrast to social media evidence-gathering from public sources, access to private sources of information may involve things like “friending” or “following” people. When the person who you are trying to obtain information about is an adverse represented party, an ethical issue may arise.
California Rules of Professional Conduct Rule 2-100(A) prohibits lawyers from communicating directly or indirectly about the litigation with a party who the lawyer knows to be represented, unless the lawyer has the consent of opposing counsel. A “friend” or “follow” request to someone is arguably a communication, and, in my opinion, direct as far as cyberspace is concerned. With that in mind, the sleuthing lawyer (and/or his/her sidekick) would be required to obtain consent from the adverse party’s lawyer, which is unlikely. Assuming consent isn’t provided, formal discovery would be required to obtain relevant information. It should be kept in mind that any information captured and archived from social media is most likely discoverable in litigation.
Sir Arthur Conan Doyle, the man responsible for the great Sherlock Holmes, said: “Skill is fine, and genius is splendid, but the right contacts are more valuable than either.” While true in many respects, when dealing with social media evidence, the right contacts are not always the proper ones. Social media can provide a wealth of information about an adverse individual or party, but lawyers should always keep ethics in mind.
Neda Shakoori is an attorney with McManis Faulkner. Her practice focuses on civil litigation with an emphasis on commercial and business law matters. She is currently leading the firm’s eDiscovery Initiative and oversees all ESI-related issues in the firm’s cases. For more information, please visit mcmanislaw.com.