Social Networks and eDiscovery
We wrote last week about ways to protect yourself from e-Discovery surprises with social networks during litigation. Of course, we are interested in this because of our own eDiscovery solution. So, looking into it over the weekend I found some other interesting information concerning how the bar is approaching the ethics involved in social media.
The popularity of social networking sites like Facebook, Twitter and LinkedIn has put them on the radar of electronic evidence collectors, with some interesting results. In Philadelphia, for example, that city’s bar association ruled as unethical obtaining “friend” status of someone on Facebook in order to obtain private information relevant to a court case.
“[T]he planned communication by the third party with the witness is deceptive,” the association opined. “It omits a highly material fact, namely, that the third party who asks to be allowed access to the witness’s pages is doing so only because he or she is intent on obtaining information and sharing it with a lawyer for use in a lawsuit to impeach the testimony of the witness.”
“The omission,” it continued, “would purposefully conceal that fact from the witness for the purpose of inducing the witness to allow access, when she may not do so if she knew the third person was associated with the inquirer and the true purpose of the access was to obtain information for the purpose of impeaching her testimony.”
As electronic discovery consultant and attorney Cliff Schnier pointed out at InsideCounsel.com, there are ways to access private information from social networking sites without resorting to deception. Just as a person’s Web mail may be the target of a discovery order if it’s believed that person used that email account to communicate on matters in litigation, it would be logical to compel a person to produce information from their social networking site that may be relevant to a lawsuit.
“Sometime in the not too distant future,” he predicted, “litigation hold notices will include social networking pages.”
