False Friends: the Ethical Limits of Discovery via Social Media

“While publicly accessible information is likely “fair game” for evidentiary use, and private posts (whose distribution may be limited to “friends,” “followers”, or other designated individuals) can — and often should –be included in discovery requests to opposing counsel, there may be times when attorneys would prefer to do their own investigations of any non-public social media posts rather than disclose their strategies by making open-ended discovery queries. In such circumstances, attorneys may be tempted to try to “become friends” with an opposing party or witness on a service like Facebook and thus gain access to posts and files not available to the general public. This could be done by the attorney directly, or by an investigator or non-lawyer at the attorney’s direction, and might not even require making false statements to the user receiving the friend request; many users will accept friend requests from anyone, or from someone whom they believe may be familiar to them from some context, without needing specific (and potentially dishonest) details about any past association.

Such “false friending,” though, has been rejected as unethical practice by multiple state and local bars. Whether the contact is with a party or a witness, is done by or at the direction of the attorney, and involves false information or merely not disclosing the real reason for (and source of) the friend request, these investigations are generally viewed as impermissible.”