I recently ran into this article on LegalBlogWatch which highlights what I can only assume will be a growing trend in the world of Legal Ethics: namely, whether and to what extent your Facebook, Twitter, MySpace, etc., will be subject to discovery requests and what rules will surround attempts by attorneys and other parties to gain access to such information.
In yet another LegalBlogWatch article (here), there is a great breakdown of a Canadian decision relating to discovery requests and Facebook specifically. Judge Brown states that while your Facebook profile is not presumptively relevant to a suit,
In yet another LegalBlogWatch article (here), there is a great breakdown of a Canadian decision relating to discovery requests and Facebook specifically. Judge Brown states that while your Facebook profile is not presumptively relevant to a suit,
A party who maintains a private or limited access Facebook profile stands in no different position than one who sets up a publicly available profile. Both are obliged to identify and produce any postings that relate to any matter in issue in an action.
I'm not sure I 100% agree with this statement. For example, recently, a friend of mine on Facebook attended a wedding and wanted to share the pictures that were taken and posted by a third person. This third party has complete lockdown on their Facebook profile and pictures. Even though my friend was "tagged" in the photos, I couldn't see the photos. My friend tried to share the photo album with me, but was thwarted there as well. At this point, there were only 2 ways we could think of to view the pictures: Either I had to become friends with this 3rd party and request access to the photo album (you can still block your friends from seeing certain photos or albums) or my friend could individually download the photos she could see and give them to me.
Clearly, you can't get around your ethical obligations by sending in a third party to do your dirty work for you (and lets not forget telling your clients to just assume that their Facebook, Twitter, etc., will be discoverable, so don't do anything dumb there either). However, I think Judge Brown's comments are indicative of a person who probably doesn't spend a lot of time on Facebook and/or does not understand how it works and what steps a person might take to ensure their privacy or expectation of privacy online.
Like I said, I only see this area of law growing in the coming years. It will be interesting to see how it shakes down.
Clearly, you can't get around your ethical obligations by sending in a third party to do your dirty work for you (and lets not forget telling your clients to just assume that their Facebook, Twitter, etc., will be discoverable, so don't do anything dumb there either). However, I think Judge Brown's comments are indicative of a person who probably doesn't spend a lot of time on Facebook and/or does not understand how it works and what steps a person might take to ensure their privacy or expectation of privacy online.
Like I said, I only see this area of law growing in the coming years. It will be interesting to see how it shakes down.
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