Ethical Implications of Obtaining Witness Information on Facebook and MySpace Accounts

Posted on June 12, 2009 by J. Benjamin Stevens

The increased use of social media has brought with it some interesting ethical questions for attorneys.  For instance, consider the question of whether a lawyer can use a third party to obtain information from or about a witness on a site like Facebook or MySpace?  The Philadelphia Bar Association’s Professional Guidance Committee issued an opinion in March that says the answer is "no."

While the information on someone’s Facebook profile is discoverable, a lawyer cannot try to access that information through deception.  If the attorney wants to see what a potential witness says to personal contacts on his Facebook or MySpace page, he has one good option -- just ask for access.  You can download and/or read the full text of Opinion 2009-02 of the Philadelphia Bar Association’s Professional Guidance Committee by clicking HERE.

Source:  "Attorney Can’t Ask 3rd Party to ‘Friend’ Witness on Facebook, Opinion Says" by Martha Neil, published at ABA Journal online; and "Ethics and Facebook" by Doug Cornelius, published at his Compliance Building blog.

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Formal Discovery vs. Informal Discovery

Posted on December 10, 2007 by J. Benjamin Stevens
In many family law cases, it becomes necessary to obtain information from the opposing party.  Since you are, in effect, "discovering" facts about the other side's case, this process is called discovery.  Gerald O. Williams of the Minnesota Divorce and Family Law blog wrote the following article which compares formal vs. informal discovery:

Discovery is the process of obtaining and providing information in the family court proceeding. The formal process of discovery includes interrogatories; requests for production of documents; and depositions. Interrogatories are questions or demands for information that must be answered in writing. Requests for production of documents involve providing copies of documents such as bank statements, asset verifications, tax returns and real estate records. Depositions are oral proceedings in which the person answering questions is providing sworn testimony, and the questions and answers are placed on record by a court reporter.

In many cases, it is not necessary to proceed with formal discovery, if there is enough cooperation between the parties and their attorneys. In divorce cases, the parties are required by law to disclose relevant information so as not to defraud each other (or the court) in arriving at a fair and equitable settlement. Consequently, it is often possible to streamline the exchange of information in a manner that is mutually beneficial and economical.

Informal discovery typically happens by letter, or by meeting in person, or both. The person providing information furnishes sufficient detail and supporting documentation in a manner that obviates sworn testimony at a deposition. The person on the receiving end, in following up and requesting additional detail or additional documentation, often does not need a great deal of the information that would be part of the formal discovery process. The exchange of information is tailored to the specific claims and relevant circumstances of the case, instead of the "fishing expedition" that the formal discovery process is characterized as by many lawyers and judges.
Source:  "Formal Discovery Versus Informal Discovery" by Gerald O. Williams, published at his Minnesota Divorce and Family Law blog.
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