This blog post is the first in a series on common ethical challenges that arise when preparing for and conducting depositions.
Social media offers such a wealth of details about a person’s circumstances and beliefs that lawyers would be remiss to pass up the opportunity to conduct “informal discovery” of an upcoming deposition witness’s social media presence. However, professional ethics rules on communications with represented and unrepresented parties, along with rules prohibiting false statements or deceptive conduct, complicate what appears to be fertile soil for witness research.
Generally speaking, if information about a witness is available publicly to anyone with an internet connection, then it may ethically be collected and used (possibly for impeachment purposes) at the witness’s deposition. Social media platforms such as X (formerly Twitter), where by default the entirety of a person’s posts are publicly available, can be used for witness research without fear of violating professional ethics guidelines.
The bottom line for lawyers seeking to use social media for witness research is this: If the information is publicly available, it’s fair game for witness research and later use for impeachment purposes at the deposition. If access to the same information requires a “friend request” accepted by the witness, then in all likelihood the information will be off-limits.
But the analysis changes when the witness’s social media content is posted to platforms that are, by default, private. On Facebook, the witness’s social media content is typically not available until a “friend request” is sent to the witness and the witness accepts the request and, thus, reveals their otherwise private posts to the requestor. Other social media platforms such as Instagram, LinkedIn, and Snapchat behave similarly: A user’s content is not publicly available unless the user takes the affirmative step of revealing it to an identified third party.
In these situations, several ethical rules come into play.
The first is the rule prohibiting deceptive conduct. ABA Model Rule of Professional Conduct 4.1(a) provides:
“In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person.”
Additionally, ABA Model Rule 8.4(c) prohibits “conduct involving dishonesty, fraud, deceit or misrepresentation.”
The second relevant set of rules are those governing lawyer communications with witnesses, both represented and unrepresented. All professional ethics regulators examining social media contacts with witnesses have concluded that “friend requests” are communications governed by the following rules.
Addressing represented witnesses, ABA Rule 4.2 provides:
In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.
On the subject of an unrepresented witness, ABA Rule 4.2 states in the relevant part:
In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.
Taken together, these rules prohibit friend requests to represented witnesses without consent of the witness’s lawyer or a court order, and they prohibit friend requests to unrepresented witnesses without disclosing the lawyer’s role in the litigation and the fact that the lawyer is seeking information relating to the case. In both situations, a forthright request for private social media content seems destined to fail.
The third ethical principle is found in ABA Rule 5.3(b), which forbids a lawyer from using nonlawyers to engage in conduct that is incompatible with the professional obligations of the lawyer. In other words, a private investigator cannot be hired to send “friend requests” to witnesses in instances in which the lawyer would be ethically prohibited from doing so.
The bottom line for lawyers seeking to use social media for witness research is this: If the information is publicly available, it’s fair game for witness research and later use for impeachment purposes at the deposition. If access to the same information requires a “friend request” accepted by the witness, then in all likelihood the information will be off-limits.
The New York State Bar Association in 2010 summed the matter up this way:
A lawyer who represents a client in a pending litigation, and who has access to the Facebook or MySpace network used by another party in litigation, may access and review the public social network pages of that party to search for potential impeachment material. As long as the lawyer does not “friend” the other party or direct a third person to do so, accessing the social network pages of the party will not violate Rule 8.4 (prohibiting deceptive or misleading conduct), Rule 4.1 (prohibiting false statements of fact or law), or Rule 5.3(b)(1) (imposing responsibility on lawyers for unethical conduct by nonlawyers acting at their direction).
Of course, nothing prevents a litigator from seeking a court order demanding that the witness disclose their social media content — whether public or private — provided that the litigator makes an adequate showing of the need for this information.
Lawyers interested in diving deeper into this topic should consult their local bar associations for guidance specific to their jurisdiction, as well as the following leading bar association opinions on informal discovery of social media content:
Further Reading
This blog frequently features content on legal issues arising at the intersection of technology, deposition practice, and professional ethics. Recent posts include:
