Sunday, February 28, 2010

Litigation Facebook Friending

Litigation Facebook Friending is going to become a major litigation due diligence issue in the coming years. In my January 8, 2010 post I created a legal definition for a Facebook Friend. In that post I defined a Facebook Friend as:

"someone whom is added to your network on a social media website. A "Facebook Friend" may or may not be someone with whom you have ever met or interacted with other than requesting that he or she be added to your network or that you confirmed that he or she be added to your network."

Neither Black's Law Dictionary nor Merriam-Webster's Online Dictionary has a definition for Litigation Facebook Friending. Therefore, I would like to create a legal definition for this activity. Litigation Facebook Friending occurs when a plaintiff or a defendant in litigation "encourages" a non-party to "Facebook Friend" one of the other litigants or a member(s) of the jury so an opposing litigant(s) can obtain inside information on another litigant(s) or a member of the jury.

If you know what your opposing litigant(s) and/or members of the jury are doing or thinking and they don't know that you have access to their Facebook or other social media website posts this can be a huge advantage. Does anyone remember John Grisham's novel and subsequent movie Runaway Jury?

In March 2009, the Philadelphia Bar Association Professional Guidance Committee provided an advisory opinion that stated that Facebook Friending opposing litigants may be considered misconduct. The opinion was not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. I believe there will be many contradictory opinions across the country on this matter and that the American Bar Association will ultimately need to resolve this issue. To learn more about these issues you may contact me at www.shearlaw.com.

Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.