The Ethics of In-House Social Media Research and Discovery

Social media platforms represent a potentially rich source of information for online discovery. If conducted ethically, social media collection in the process of discovery is entirely legitimate. However, the 2019 Robertelli Majority case serves as a cautionary warning against the temptation to skirt the rules. During that case, many attorneys were unaware of the rules governing social media evidence collection – but in 2022, it is impossible for attorneys to plead ignorance to these regulations.

The Robertelli Majority Case

Online discovery is prone to misidentification or misinformation. For example, when searching for individuals with common names – it is far too easy to identify the wrong person. And even if you do identify the right person, an online search may provide outdated information or completely wrong results. In a worst-case scenario, online searches may not yield any useful information at all. This is where not having a highly trained team to execute online discovery can prove costly. Your firm risks having the case dismissed or a lawsuit by the misidentified individual.

Hernandez, represented by an attorney, had recently filed a claim of permanent disability. In his claim, Hernandez stated that injuries he had suffered after being struck by a police car while doing push-ups in the parking lot of the Borough of Oakland Police Department had caused him to lose athletic and academic scholarships. The Borough hired Robertelli’s firm to represent them, the police department and the police sergeant driving the car that struck Hernandez.

During the pre-trial intervention period for the claim, Hernandez had made posts on his Facebook profile inconsistent with being disabled. Valentina Cordoba, a paralegal for the firm assigned to monitor Hernandez’s Facebook profile, discovered these posts. This practice was legitimate because, at the time, Hernandez’s Facebook profile was completely public. However, Hernandez later made his profile private, which restricted further monitoring. At that point, Cordoba explained the concept of “friending” to Robertelli and how it would restore access to Hernandez’s private posts. While Robertelli initially instructed the paralegal to hold off, he later gave the go-ahead, despite Hernandez having legal counsel. Cordoba then sent Hernandez a “friend” request, stating that he looked like her favorite hockey player. She did not disclose her status as a paralegal to Robertelli’s firm. Several months after “friending” Hernandez, Cordoba discovered a video on Hernandez’s Facebook page of him wrestling with his brother and informed Robertelli of its existence.

Model Rules of Social Media Research

ABA Model Rule 4.2 prohibits attorneys and attorneys’ agents from requesting a connection to a represented party through social media networks to gain access to private information. Accordingly, attorneys should avoid communicating with or contacting a represented party in any manner to access social media information.

In addition, Model Rule 8.4 specifically prohibits employing deception or misrepresentation to gain access to an adverse party’s private social media profile information.

The potential consequences of violating the ethics of collecting social media evidence are harsh. For example, the outcome of the Robertelli was a majority of four votes for admonition; two votes for the more severe punishment of censure. There were three votes to dismiss Hernandez’s complaint.

There was also recommendation to the court that any future attempt by attorneys, their agents, subordinates or proxies to gain improper access to an adverse party’s private social media content should constitute a violation of RPC 4.2. Further, employing misrepresentation or deception to gain access, such as “friending” an adverse party, should be considered a violation of RPC 8.4(c).

SMI Aware has proprietary technology capable of executing sophisticated digital forensics to handle high-volume discovery and analysis. Our independent in-house Analysts use their expertise and our proprietary software to perform thorough data collection and analysis to provide consistent, accurate results. Contact us to learn more about how we can help you with your ediscovery.

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