Facebook makes a damn fine litigation tool


I am not related to Carnac the Magnificent.

Several months ago, when I posted How Facebook Can Make or Break Your Case, I offered a series of tips about how attorneys representing companies can use Facebook to sleuth out some A-1 information about employee-plaintiffs.

Well, it seems attorneys in the State of New York had some
reservations about whether attorneys may ethically use Facebook to
gather the dirt on other litigating parties.

Well wonder no more…

The New York State Bar Association has issued an Ethics Opinion addressing the following question:

May a lawyer view and access the Facebook or MySpace pages of a party other than his or her client in pending litigation in order to secure information about that party for use in the lawsuit, including impeachment material, if the lawyer does not “friend” the party and instead relies on public pages posted by the party that are accessible to all members in the network?

Drawing upon a 2009 opinion from The Philadelphia Bar Association — score another one for Philly (I think that makes the score Philadelphia 37 – New York 1) — The New York State Bar Association reasoned that an attorney may access a litigant’s Facebook page that, because of lax privacy settings, is left open for the public to view.  However, the opinion does warn that lawyers may not “friend” the other party or direct someone else to do so for the purpose of obtaining additional information that is not otherwise publicly accessible.

Although not addressed in the Ethics Opinion, it is clear — at least to me — that regardless of Facebook privacy settings, a party may serve discovery requests to obtain relevant information found on another litigant’s Facebook page.

Well, one court agrees. In EEOC v. Simply Storage Management,
a federal court permitted an employer to obtain discovery of an
employee’s social networking activity that, through privacy settings,
the employee had made “private” and not available to the general public.

So, as part of discovery, an employer — even one from NY — should consider requesting:

All online profiles, postings, messages (including, without limitation,
tweets, replies, retweets, direct messages, status updates, wall
comments, groups joined, activity streams, and blog entries),
photographs, videos, and online communications that:

  1. refer or relate to the allegations set forth in the complaint;
  2. refer or relate to any facts or defenses raised in the answer;
  3. reveal, refer or relate to any emotion, feeling, or mental state; or
  4. reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state.

Make that Philadelphia 38 – New York 1.

P.S.  – Mets suck!