With all of the talk on social media there is an interesting issue that will arise sooner or later (and might already have done so in an unreported case.)
You Do the Research
Let’s say someone comes to you to represent them in a case, can be in any area but especially domestic, employment, personal injury, and criminal and you go online and look at the social media presence of the opposing party or a witness in the case.
You Handle Everything Ethically
You make sure you are only looking at the site in an appropriate way, reviewing materials that the individual left public, making sure to obey Philadelphia Bar Association Guidance Opinion 2009-02 on use of social media. You make copies either by creating a PDF or using a program to take a snap shot of the screen of any data you find that interests you.
You Provide a Notice To Preserve
You provide a notice to preserve, but the opposing client takes it upon him or herself to delete the information or change the privacy settings so the data is no longer accessible.
You Ask for Discovery/Admission
You go through the discovery process, you show your preserved data to the judge and now she has to decide whether the information you found is relevant, not unduly prejudicial and the Judge is considering requiring access to the account and/or admitting what you found.
You Did the Research
Problem. You did the research. Someone needs to authenticate the materials. And since the opposing client deleted the information who do you think will be the person needed to authenticate the materials? Why that will be you.
You are the Witness
Now you are a witness in your own case. What do you do? Will the Judge insist since you need to testify you can no longer be counsel? Will you need to hire another attorney to handle the questioning for you? Can someone else in your firm (if you aren’t a solo) handle the questioning?
Ask yourself, is this a situation you want to be in?
Find Someone Else to do the Research
Consider this, don’t do the research yourself. Have someone else in your firm (if you have someone) handle the research, noting carefully every step she takes, preserving copies of everything she finds, so that if it becomes necessary, instead of having to answer questions you can do your proper job and ask them.