The term “social media” is constantly evolving to include new forms of Internet-based interaction. User profile sites like MySpace, Facebook, and LinkedIn and the data stored therein have been at the heart of much litigation, often with disputes focusing on whether certain social media content is discoverable or not. New platforms such as Twitter, Instagram, Tumblr and Pinterest present litigants with additional and potentially bountiful sources of evidence. To be sure, as exciting new social media products hit the market, privacy settings and account security can become increasingly difficult to effectively manage, and unwary individuals may unintentionally expose their social media accounts to informal discovery. Concomitant with the potential benefits to litigants of discoverable social media content comes the difficult task of maintaining an appropriate and ethical approach to social media investigations and informal discovery.
In 2010, the Association of the Bar of the City of New York Committee on Professional and Judicial Ethics issued a formal opinion, titled “Obtaining Evidence From Social Networking Websites.” New York Bar Ass’n, Obtaining Evidence From Social Networking Websites (2010), available at http: nycbar.org/ethics-opinions-local/2010-opinions. The advisory opinion focused on “direct or indirect use of affirmatively ‘deceptive’ behavior to ‘friend’ potential witnesses, and other forms of gathering information for litigation under false pretenses. Id. In its decision, the Committee concluded that “a lawyer may not use deception to access information from a social networking webpage” and that instead, lawyers should “rely on the informal and formal discovery procedures sanctioned by the ethical rules and case law to obtain relevant evidence.” Id.
Further echoing the Committee on Professional and Judicial Ethics, The Sedona Conference Primer on Social Media noted that “[w]hile tempting, it may be a violation of the Rules of Professional Conduct for a lawyer to request greater access to a user’s account under pretext, without being forthright about the request and fully disclosing the purpose of the request.” The Sedona Conference Working Group Series, Primer on Social Media, p. 57 (Oct. 2012), available at https://thesedonaconference.org/publication/ sedona-conference%C2%AE-primer-social-media. As a result, counsel for litigants cannot seek access to data that is not readily available to the general public without clearly identifying oneself and the representation.
The Committee on Professional and Judicial Ethics further advised that through the informal discovery process, the “ethical line” is not crossed “when an attorney or investigator uses only truthful information to obtain access to a website, subject to compliance with all other ethical requirements.”
With this guidance and context, the privacy settings on a given social media platform become crucial to those seeking to limit the potential for informal discovery. When all of an individual’s information is available for public viewing, pretextual investigations are not an issue. But when privacy safeguards block an attorney from accessing information without user acceptance, both attorneys and users alike should be wary of “opening the door” to improper discovery or unwanted disclosures with a simple click of the mouse.