Lawyers love to talk about how technology always moves faster than the law. Nowhere is that tension more apparent (and sadistically fun to observe) than within the mean streets of Facebook. We’ve covered legal standards surrounding Facebook before — and it never gets old.
This week, a defense attorney in a personal injury case learns that just because you ask to be someone’s Facebook pal, that doesn’t mean they have to say yes. Even if you ask through the court system and your would-be “friend” happens to be suing your client for car-crash injuries.
A shocking revelation, right? Details after the ol’ jump.
An airbag hit Sara Piccolo in the face during a 2007 single-car auto accident, requiring stitches and surgery and leaving her with permanent scars.
Piccolo sued the driver of the car she was riding in, and the driver accepted liability. But the case has continued in the Bucks County Court of Common Pleas, over a dispute in the amount of damages. From Law Technology News:
According to the defense motion, filed by attorneys at Moore & Riemenschneider, Piccolo testified she had a Facebook account and was asked at deposition if the defense counsel could send a “neutral friend request” to Piccolo so that he could review the Facebook postings Piccolo testified she made every day.
Piccolo denied the request but, according to defense filings, said her status updates and pictures were available for public viewing and that she would not make them private. The defense argued in its motion, however, that when it went to Piccolo’s Facebook page, those postings were in fact private and only available to her “friends.”
Counsel sent Piccolo’s attorney, Benjamin G. Lipman of the Law Offices of Benjamin G. Lipman, a letter in September 2010 asking for Piccolo to accept a friend request from the defense.
First off, it strikes me as slightly ridiculous that someone felt it necessary to spend time at a deposition and writing letters asking permission to be Facebook friends. Piccolo’s response notwithstanding, nobody was preventing defense counsel from simply sending her a friend request like a normal person. You never know, she might have accepted, because people make way more boneheaded moves on Facebook.
Unsurprisingly, the request got denied. Lipman admitted the Facebook content was “probably not protected by any evidentiary privilege that has been recognized in Pennsylvania.” But he said the request would cause “unreasonable annoyance, embarrassment, oppression or burden,” contrary to the Rules of Civil Procedure.
It does sound like Piccolo’s injuries were pretty severe. And it doesn’t seem like she was being evasive during the investigation process.
Piccolo allowed the insurer to come to her home in 2008 and take photographs of her face. She also gave the defense 20 photos of her face from the week following the accident as well as five photos from the months just before the accident. She allowed the defense to take more pictures at the September 2010 deposition.
Her lawyer used that previous cooperation to justify the friendship denial. But in situations where there might be an obvious legal reason to need account access, the result might well have been different. But even then, a devious litigant might have put the defense on limited visibility — and who would have known?
If you’re an attorney seeking information from a witness or an adverse party’s social networking profile, and that profile is private — if it’s public, it’s fair game — you need to proceed with caution, due to legal ethics issues.
Courts have held, for example, that an attorney cannot deceptively “friend” a potential witness (e.g., a lawyer using a third party to send a friend request to an adverse witness). In addition, even non-deceptive friend requests, made by attorneys using their real names, raise ethical concerns. As Paul Garrity & Kathryn Hines of Sheppard Mullin explain, over at Social Media Law Update:
[W]hat if an attorney uses his real name to “friend” openly and honestly? According to the New York [state and city bar ethics] opinions, this may implicate yet another pair of ethical rules. If a lawyer attempts to “friend” a represented party in a pending litigation, then the lawyer’s conduct is governed by Rule 4.2, which prohibits a lawyer from communicating with a represented party about the subject of the representation absent prior consent from the represented party’s lawyer. N.Y. Prof’l Conduct R. 4.2.
If a lawyer “friends” an unrepresented party, then her conduct is governed by Rule 4.3 which prohibits a lawyer from stating or implying that he or she is disinterested, requires the lawyer to correct any misunderstanding as to the lawyer’s role, and prohibits the lawyer from giving legal advice other than the advice to secure counsel if the other party’s interests are likely to conflict with those of the lawyer’s client. N.Y. Prof’l Conduct R. 4.3.
If push comes to shove, you may have to subpoena the information. Fun stuff.
(And when dealing with social-network evidence, make double-secret sure you have the right person’s profile… or else.)
Facebook Postings Barred From Discovery in Accident Case [Legal Technology News]
Legal Ethics and The Social Network [Social Media Law Update]
Christopher Danzig is a writer in Oakland, California. He previously covered legal technology for InsideCounsel magazine. Follow Chris on Twitter @chrisdanzig or email him at [email protected]. You can read more of his work at chrisdanzig.com.