The discoverability of Facebook profiles has been discussed with respect to a plaintiff. But what about a non-party’s Facebook page? Is it discoverable? Is it accessible through non-formal discovery methods? Would that be ethical?
The Philadelphia Bar Association issued an advisory opinion that should be of interest to all litigators. The inquiring attorney sought the opinion of the Professional Guidance Committee about the ethical limits on contacting a witness through her MySpace or Facebook page.
The attorney had deposed a non-party witness whose testimony was favorable to the opposing side. During the deposition, the witness revealed that she had accounts with Facebook and MySpace. Following the deposition, the attorney visited the witness’ Facebook and MySpace pages but was prevented from seeing the content because of the privacy settings on the accounts. The attorney, therefore, cannot access the pages without the permission of the witness. The attorney indicated that the witness was likely to grant any request for access or “Friend Request.”
The attorney proposed to have his agent try to “friend” the witness and attain the desired information from her pages. The agent would provide only truthful information, such as his real name, but would not disclose the reason for his Friend Request or that he was employed by the lawyer
The Committee determined that the proposed conduct constituted impermissible deception that would violate Rule 8.4 of the Rules of Professional Conduct. Rule 8.4(c) provides that it is misconduct for an attorney to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation. Specifically, the Committee found that the material omission of the attorney’s agent as to his purpose for making the Friend Request, would constitute deception impermissible under the Rules.
Facebook users, beware. Although the outcome here protects the witness’ privacy, there is an underlying message not discussed in the advisory opinion. The fact that an attorney sought the Board’s opinion indicates the high likelihood that there are others out there engaging in the practice already.