Avoiding Misrepresentation in Informal Social Media Discovery

Abstract

Social media data is changing the face of civil discovery in many cases, and informal discovery of social media content on sites such as Facebook can prove extremely valuable for litigants. But the process of performing informal searches of social media content tests the boundaries of ethics rules, particularly those dealing with misrepresentation. Social media websites shield some content from public view, and lawyers may run afoul of the ethics rules if they use improper tactics to gain access to private information.

This essay explores the current ethical boundaries of informal discovery as they apply to the social media data of unrepresented persons in particular. It addresses how informal searches of social media are not only permitted, but required in some cases. Further, this essay suggests the proper approach to avoiding misrepresentation in informal discovery of social media data is to require affirmative disclosures when attempting to access private online content. Such disclosures are supported by the American Bar Association’s Model Rules of Professional Conduct and by the need to safeguard against abuses because of the casual and informal nature of social media.

Keywords: Social Media, Ethics, Legal Ethics, Discovery, Professional Responsibility, Civil Procedure, Facebook

JEL Classification: K40, K41