By Thomas G. Wilkinson, Jr. and Lindsey E. Wilkinson
It has become common practice for lawyers to mine social media pages of parties and witnesses for discovery purposes. But can the urge to dig up dirt on opposing parties cause lawyers and their staff to overstep the line into ‘risky business’ practices or even potential for lawyer disciplinary consequences?
Millions of people regularly post personal information and photographs on Facebook and other social media sites. That personal information may include details undermining the strength of pending complaints, such as personal injury or employment claims. Many lawyers will access the social media pages for opposing parties and witnesses as a routine matter before taking their depositions, and will look for information for use in cross-examination or impeachment. Quite often they will find a plaintiff claiming a disabling injury who has posted photos of him or herself engaging in strenuous physical activity or extreme sports and showing no signs of injury. This is a potential gold mine for defense counsel, and of course a nightmare for plaintiff’s counsel, who are now also routinely scouring their own clients’ social media pages for potential evidentiary material.
These practices have produced a series of state bar ethics opinions attempting to define the contours of permissible conduct by lawyers wishing to gain access to an opponent’s social media postings. In the first opinion addressing “friending” an opposing party to gain access to the content on their Facebook page, the Philadelphia Bar’s Professional Guidance Committee opined that it was misleading for an attorney to cause his paralegal to “friend” the opposing party to gain access to private social media postings or photographs. In a recent opinion the San Diego bar’s ethics committee concluded that it was improper for a lawyer to friend an opposing party that is represented by counsel because it would violate the traditional rule against direct contact with represented parties. Put another way, who needs “friends” who are really adversaries?
Courts are also addressing issues related to the discoverability of social media information and reaching somewhat inconsistent results. So far it is fair to conclude that a generalized request to produce anything and everything from all social media sites used by a party will be rejected as overbroad. But a tailored request for material directly related to the allegations in the case, such as photographs of the plaintiff with an alleged leg injury water-skiing or hiking will likely be deemed fair game. Tell your clients to resist the urge to talk about their case or their injury online, as that information is likely discoverable and not protected by any privilege.
Thomas G. Wilkinson, Jr. is a member of Cozen O’Connor’s Commercial Litigation Practice Group and heads the firm’s alternative dispute resolution practice. He concentrates his practice in business litigation, business torts, complex insurance coverage, and professional responsibility matters.