With Google about to launch Google+, its own social networking site, to rival the reigning king of social networks, Facebook, it is a good time to brush up on the dos and don’ts of using social networking sites as an investigative tool during litigation. I regularly check Facebook to see if the plaintiffs or witnesses in my cases have Facebook profiles. True story – I was defending a case in which the plaintiff — let’s call her Jane — claimed that injuries to her back and shoulders caused severe scarring that made her self-conscious and limited her choices of formalwear. Yet, I found Jane on Facebook smiling in her profile picture wearing her strapless wedding gown, which exposed the upper half of her back and shoulders. Busted. I printed the picture and added it to my exhibits for trial. By accessing Jane’s account, did I commit an ethical infraction? Did I engage in ex parte communication with a represented party? To answer these questions, follow these simple rules:
Don’t: Do not friend request an opponent or potential witness with the goal of getting inside information for a client’s matter. A friend request intended to elicit information from a represented party about the subject matter of a client’s representation amounts to improper ex parte communication. An attorney’s duty not to deceive prohibits him from making a friend request, even of unrepresented witnesses, without disclosing the purpose of the request. And don’t even think of trying to use a third person to friend a party or nonparty witness.
Do: Search for public websites or profiles. There is nothing that prohibits a lawyer from accessing a represented party’s public website or profile. If the party or witness does not use the privacy settings to limit who can view his or her profile or website, that information is fair game. Print it out and add it to your exhibits. You can also subpoena Facebook or MySpace in order to secure people’s profiles.
Fortunately for me, Jane did not restrict access to parts of her Facebook profile. Jane’s profile picture and even some of her personal information could be viewed by anyone with a Facebook account. What you learn from a public profile could be the difference between success and failure at trial.