Litigation Support

Recently, we've seen a deluge of social networking evidence in court, especially in family law cases. It's extraordinary how fast this tidal wave came at us. Most of the time, the evidence comes in easily since the other side doesn't deny that it is authentic. Rigorous authentication is very much the exception in most courts.

One ethical question keeps popping up in our CLEs. Lawyers want to know how to glean evidence from social networking sites. Now that so many people have put privacy settings on their social networking sites, attorneys must get the data through discovery. They cannot go directly to the social networking sites, which may not disclose personal data under the Electronic Communication Privacy Act. Courts have been quite clear about this.

Therefore, the attorneys must request the data from the user, who in turn can request their own data from the social networking sites. A nifty shortcut is getting the data through a third party. Let's talk about Facebook (which, it was announced yesterday, has now surpassed Google as the most heavily trafficked site on the Internet - apparently we are less interested in researching information and more interested in joining the party). It also appears that we are all eager to confirm just about anything with two legs as a friend. To put a new spin on an old chestnut, we appear to believe that he who dies with the most "friends" wins.

Certainly, if they know someone, they are likely to confirm them as a friend. Commonly, in a family law cases, a spouse will ask a mutual friend of both parties to "friend" the other party and become an informer. The spouse will then bring the data to the lawyer. I see no ethical problems with using that data since the spied upon spouse acted to confirm someone as a friend, thereby opening up their site for inspection. It does of course amaze me that lovers will discuss their affair via Facebook and make social plans there, but it's good for business, so I guess I won't complain . . .

But here's the caveat we lecture about. Most lawyers are well aware of the ethical prohibition against the use of deceit and would not attempt to friend the spouse whose data they want, whether using their own name (which might not be recognized) or (obviously) a fictitious identity. As the Beatles sang, "No, no, you can't do that." And they know they CAN accept and use evidence procured by deceit if they had no part in it.

The dicey part comes when their client asks them about the legality of getting a third party to "friend" their spouse in order to obtain evidence in the case. I've had attorneys argue that telling their client the law isn't engaging in deceitful conduct. I don't agree. When the client asks this question, I think the attorney is now implicated in the conduct because explaining the law (even with a caveat that the lawyer cannot recommend deceitful conduct) is going to be seen by the client as tacit approval. I recognize that there is a legitimate argument to be made on both sides here, but when it comes to skirting the boundaries of ethics, my choice to is steer waaaay clear of the line.

E-mail: snelson@senseient.com   Phone: 703-359-0700

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