JDs Rising

By Brett Clark

Mark Cohen’s October 5 post on MinnLawyer Blog points out that social media can be harmful to a lawsuit. For some reason, socially networking litigants often have no inhibitions about posting pictures of themselves drinking despite the terms of their DWI sentences, playing softball despite their alleged back injuries, or engaging in a variety of embarrassing activities in the thick of their messy divorces. Most seem to believe that strict privacy settings will shield their activities from the light of a courtroom, to the delight of opposing counsel. The recent order out of the Suffolk County, NY, Supreme Court that Cohen highlights is important not just because it granted discovery into social networking activity, but because of the way the court did so. Some strategies for conducting discovery into social media are better than others.

The most obvious way might be the least effective—simply sending a discovery request seeking access to the site. A site like Facebook does not lend itself well to being printed off, especially if the time period in question is more than a couple of months. Inspection of the site itself is also problematic. An opposing party is much more likely to delete incriminating posts on Facebook than he or she would an e-mail or other document. While there are ways of checking a hard drive or metadata for modifications of deletions, it is much more difficult to prove that a post has been deleted from a networking site hosted three thousand miles away by a third party.

This problem gives rise to the temptation by lawyers to circumvent privacy controls and access the site without the user’s knowledge, but this path is fraught with ethical land mines. The idea has occurred to at least a few attorneys that one could enlist the help of a third party to send a friend request to an adverse party or witness in the hope that they will simply accept it, thereby granting access to the user’s profile. At least two bar associations (the Philadelphia Bar Association and New York Bar Association) have considered this strategy and determined that it would run afoul of the Rules of Professional Conduct.

In March 2009, the Philadelphia Bar Association considered whether a lawyer could enlist a person to gain access to the Facebook page of an unrepresented witness in this fashion, while concealing the person’s association with the lawyer (obtaining potential impeachment material). They weren’t fond of the idea. The bar found the conduct to violate Rules 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation) and 4.1 (prohibiting a lawyer from making a false statement to a third person), it clearly implicates Rule 5.3(c)(1). That rule essentially states that a lawyer cannot ask an employee to do something that the lawyer herself could not do. If the witness is unrepresented, then the attorney is required to clearly disclose that her interests are adverse. If the person is a represented witness or party, then the attorney cannot communicate about the subject of the representation with the person at all. Thus, the attorney at issue could not send a friend request to the witness herself. Ipso facto, she cannot order a paralegal to do the same. This strategy is a non-starter.

The recent order from the Suffolk County Supreme Court in New York presents a potential third option. In Romano v. Steelcase Inc., Defendant Steelcase moved the court for an order directing the Plaintiff to provide “authorizations to obtain full access to and copies of Plaintiff’s current and historical records/information on her Facebook and MySpace accounts.” In other words, Steelcase wanted to obtain the information directly from Facebook and MySpace so as to gain access to any deleted information. While most of the order discusses the Plaintiff’s arguments that the pages should be shielded under the guise of privacy, the relief granted by the court is what is most remarkable. The judge not only granted the motion, but ordered the Plaintiff to execute authorizations directing Facebook and MySpace to allow the Defendant access to all records, including archived and deleted records.

One might wonder why the Defendant could not have simply subpoenaed Facebook for the information it was seeking. The answer lies in the federal Stored Communications Act, which Facebook argued would prohibit it from “producing a non-consenting subscriber’s communications even when those communications are sought pursuant to a court order or subpoena.” By ordering the Plaintiff to authorize the production, it seems, the court was able to moot this issue.

The Romano route seems to provide the best possible option for discovery of social networking records so far. By seeking the Plaintiff’s authorization to take the request straight to Facebook, Steelcase avoided the risk of the Plaintiff deleting records while at the same time staying within the bounds of the Rules of Professional Conduct and avoiding the strictures of the Stored Communications Act.