Litigation in the 21st Century

The use of social websites such as Facebook and MySpace has become a common way for people to socialize and share information about themselves and their activities. These websites offer members a way to create a profile to enter information. The information can be distributed on a public page available to everyone with Internet access or on private pages accessible only by “friends” that are linked to by permission of the member. The advent of social networking has created new ethical and legal challenges for attorneys.
Consider attorney Jack Hammer, representing a de-fendant in a slip and fall litigation case. The plaintiff maintains that the incident allegedly caused by the defendant’s negligence has resulted in severe physical and mental injuries so that the plaintiff is unable to work or function so as to enjoy life to his fullest. As such, the plaintiff is asking for damages befitting a case for the Nassau Supreme Court. At the deposition, the plaintiff appeared in a full body cast and bemoaned how his injuries has caused him financial losses due to his loss of job and high medical bills and that his lust for life has been drained when his wife left him because he could no longer provide “services” expected from a husband.
While Jack is readying the case for trial and sitting at his computer, he impulsively googles the plaintiff’s name, and a Facebook page is listed among the entries. Intrigued, Jack decides to “friend” the plaintiff, even though Jack only knows the plaintiff as the adversary on his case. Suddenly and surprisingly, the plaintiff accepts Jack’s Facebook invitation and Jack gains access to the plaintiff’s private pages which contain photos, videos and postings. Jack sees photos and videos of the plaintiff participating in baseball, football, basketball, hockey, golf, and ballroom dancing. All of these photos are of events that occurred after the incident that is subject to the trial. In none of these photos is the plaintiff wearing a body cast or appearing injured or disabled. Furthermore, the plaintiff posts that “recently life has never been better – I’m dating a lot of hot women, even my wife thinks I’m a better lover. I’ve got a great job off the books so I can keep collecting disability and I’m going to be coming into some big money soon. Keep it to yourselves; I only share this information with my good friends.”
Jack can’t wait to go to trial and use this online evidence to impeach the plaintiff. Envisioning himself to be the Perry Mason of the twenty-fist century, he begins to prepare his case using the Facebook evidence as the cornerstone for defending his client.
Can Jack use this evidence? Unfortunately for Jack, his act of “friending” the plaintiff most likely will make the evidence non-admissible and may make Jack subject to ethics violations. The Committee on Professional Ethics of the New York State Bar Association (herein “the Committee”) recently issued an opinion concerning the use of Facebook pages as evidence in pending litigation. Committee On Professional Ethics – Opinion 843 (9/10/10) (available at http://www.nysba. org). The opinion makes clear that an attorney should not “friend” an adverse party in the litigation. If the party is represented by counsel, the attorney’s action to “friend” runs afoul of Ethics Rule 4.2 (the “no-contact” rule) which prohibits a lawyer from communicating with the represented party about the subject of the representation absent prior consent from the represented party’s attorney. If the party is unrepresented, the attorney’s action to “friend” will likely violate Ethics Rule 4.3, which prohibits a lawyer from stating that he is disinterested and prohibits the lawyer from giving legal advice other than the advice to secure counsel if the party’s interests are likely to conflict with those of the lawyer’s client.
What if Jack used a third party to friend the plaintiff and gain the evidence? The Committee, using guidance from a Philadelphia ruling, concluded that an attorney should not propose that the third party friend the adverse party to obtain evidence while the third party concealed his or her association with the attorney and the real purpose for the “friending.” Such activity would violate Ethics Rule 8.4 (c) (which prohibits a lawyer from engaging in conduct involving “dishonesty, fraud, deceit or misrepresentation”) and Ethics Rule 5.3(b)(1) (which holds a lawyer responsible for the conduct of a non-lawyer employed by the lawyer if the lawyer directs, or ratifies conduct that would violate ethics rules if engaged by a lawyer. Finally, the “friending” through a third party violates Ethics Rule 4.1 which prohibits a lawyer from making a false statement of fact or law to a third person. Additionally these ethics rules extend to all parties and witnesses involved in the litigation with the exception of the attorney’s own client.
However, the Committee agreed that there is no violation of the ethics rules if the attorney accesses and reviews the public pages of the adverse party’s Facebook or other social network site to search for impeachment material. The ethics rules are not implicated because the attorney is not engaging in deception by accessing a public website that is available to anyone in the network, provided that the attorney did not employ deception in any other way (for example, employing deception to become a member of the network). The Committee observed that obtaining information about a party available in the Facebook (or other social website) profile is similar to obtaining information that is available in publically accessible online or print media, or through a subscription research service, and that is plainly permitted.
Nonetheless, what if Jack Hammer really wants to use material from the plaintiff’s private pages? He may have a reasonable good chance through a motion to the court to compel the plaintiff to produce the material. In the recent case, Romano v. Steelcase Inc. 907 N.Y.S.2d 650 (NY SUPP, Suffolk County, 2010), the Suffolk County Supreme Court allowed information found on the plaintiff’s private Facebook and MySpace pages to be used as impeachment material by the defendant. In this case, the plaintiff was suing the defendant over injuries sustained in an incident. The plaintiff claimed she was entitled to damages due to injuries that did not allow her to participate in certain activities and had affected her enjoyment of life. When the defendant reviewed the public portions of the plaintiff’s MySpace and Facebook pages, it showed that the plaintiff had an active lifestyle and traveled to Florida and Pennsylvania during the time period she claimed that her injuries prohibited such activity. Thus, the defendant sought to question the plaintiff at her deposition regarding information on her social networking sites. When the plaintiff refused to disclose the information, the defendant served on the plaintiff a Notice for Discovery and Inspection requesting the authorization to obtain full access to the information on all of the plaintiff’s private pages.
The Court noted that pursuant to the NY CPLR scope of permissible discovery, plaintiffs who place their physical condition in controversy may not shield from disclosure material which is necessary to the defense of the action. Accordingly, in an action seeking damages for personal injuries, discovery is generally permitted with respect to materials that may be relevant both to the issue of damages and to the extent of a plaintiff’s injury, including a plaintiff’s claim for loss of enjoyment of life. The Court found that the social website information sought by the defendant was both material and necessary to the defense of the action and/or could lead to admissible evidence. The Court observed that because the public portions of the plaintiff’s social networking sites contained material that was contrary to her claims and deposition testimony, there was a reasonable likelihood that the private portions of her sites may contain further evidence such as information with regard to her activities and enjoyment of life, all of which the Court believed to be material and relevant to the defense of the action. The Court further noted that to permit a party claiming very substantial damages for loss of enjoyment of life to hide behind self-set privacy controls on a website, the primary purpose of which is to enable people to share information about how to lead their social lives, risks depriving the opposite party of access to material that may be ensuring a fair trial. Thus, the Court held that preventing the defendant from accessing the plaintiff’s private postings on Facebook and MySpace would be in direct contravention to the liberal disclosure policy in New York State.
However, the Appellate Division, 4th Department upheld a lower court decision to deny a defendant’s motion to compel a plaintiff to disclose photographs and allow access to the plaintiff’s Facebook account in McCann v. Harleysville Ins. Co. of N.Y., 910 N.Y.S 2d 614 (4th Dept. 2010). In this case, as distinguished from the Romano case, the defendant failed to establish a factual predicate with respect to the relevancy of the evidence, i.e., there was no indication from the public pages on Facebook that the private pages would offer any evidence as to whether the plaintiff sustained a serious injury. The Court ruled that the defendant essentially sought permission to conduct a “fishing expedition” into the plaintiff’s Facebook account based on the mere hope of finding relevant evidence.
Could the Romano v. Steelcase case be overturned by the higher courts? The Suffolk County Supreme Court noted that New York courts have yet to address whether there exists a right to privacy regarding what one posts on their on-line social networking pages such as Facebook and MySpace. However, whether one has a reasonable expectation of privacy in internet postings or e-mails that have reached the recipients has been addressed by the Second Circuit, which has held that individuals may not enjoy such an expectation of privacy. See U.S. v. Lifshitz, 369 F.3d 173 (2nd Cir. 2004). One may logically extend that ruling to social websites, in that the forums are websites where participants voluntarily disclose the information that they post. It is unlikely that courts will rule that a party has a reasonable expectation of privacy on his or her private pages since neither Facebook nor MySpace guarantee complete privacy on their privacy disclosures, which a party agrees to when they join the social site. For example, the Facebook security policy warns members “You post User Content … on the Site at your own risk. Although we allow you to set privacy options that limit access to your pages, please be aware that no security measures are perfect or impenetrable.” The security policy goes on to explain that when one uses Facebook, information may be shared with others in accordance with the privacy settings that are selected. All such sharing of information is done at the user’s risk and the information may become publically available.
To summarize, the emergence of social websites presents ethical and legal challenges for attorneys. It is hoped that this article highlighted some of these challenges and helps guide attorneys (with cases similar to Jack Hammer) to make the right decisions as to the best methods to gather evidence that may be needed for litigation.
James Fiorillo is an associate at Bee Ready Fishbein Hatter & Donovan LLP. Comments or questions concerning this article can be emailed to or He can be linked to through LinkedIn