Whether to add witnesses and parties as “friends” on social networking sites has become a common topic of conversation among defense attorneys.  Those who are newer to the internet may feel that social networking sites provide a sense of anonymity.  Nothing could be further than the truth.

All social networking sites and blogs permit users to create “private” accounts that limit the amount of information they disclose to the public.  There are different levels of privacy.  Pages can be public, completely private, accessible by specified “friends” or some combination thereof.  For example, on Facebook, a user can make certain portions of their page, such as photos, available to the public and limit access to other parts of their page.  Or, a user can require that other users seek his or her permission before accessing their information.  A blogger may also create a “filter” so that only certain friends can read entries. With recent news articles and television shows on internet privacy, an increasing number of internet users are making their blogs and social networking sites accessible only to a limited group of friends.

Adding a plaintiff or co-defendant as one of your friends during litigation is a risky endeavor and should be avoided at all costs.  Some attorneys may think that merely adding plaintiff as a friend so that the attorney can access private photographs or blog entries does not constitute a forbidden ex parte communication.  Even if you do not engage in direct ex parte communications regarding the litigation, a court may see things differently.  I do not recommend asking your assistant, friend, family member or acquaintance to contact a party for you, either.  The risk of an ethics violation is not worth the remote possibility that you find admissible and useful information on a party’s social networking profile.

Adding a non-party witness as a friend is equally inadvisable.  The Philadelphia Bar Association issued an ethics opinion that directly addresses the issue.  The opinion evaluated  whether it is appropriate to access the private social networking site of a non-party as a witness for the purposes of obtaining evidence to impeach the witness.  The Philadelphia Bar opined that such conduct would be unethical, even if the attorney merely directed a non-lawyer assistant or friend to access the witness’ site.  The Bar disagreed with the suggestion that accessing a witness’ site via a third party was akin to online sub rosa surveillance, noting that sub rosa surveillance captures a person in public, whereas monitoring a private social networking site would be much like gaining access to a person’s home by way of deceit.

Expert witnesses should also be excluded from attorneys’ social networking sites.  Declining an invitation on Facebook or LinkedIn may feel awkward, particularly if you have a good rapport with your expert.  Opposing counsel will have an opportunity at deposition to ask the expert how many times your firm has retained them and how many times they have worked with you.  Even if you have only retained the expert once before or met the expert through a professional organization, links on networking sites may create the appearance that you have an ongoing personal relationship with the expert.  Listing an expert on your social networking site will almost certainly give plaintiff an opportunity to imply some degree of bias in deposition or trial.

While it may be tempting to extend your investigation of plaintiffs and parties by gaining access to private social networking sites, doing so can be dangerous.   Subpoenaing records from plaintiff’s private Facebook profile may be more expensive and time consuming than accessing her site directly.  However, using formal discovery to obtain that information will avoid any inference of impropriety on your part.  For similar reasons, expert witnesses should remain off of your professional and social networking sites.  While they may wish to build their business through networking, it is important that experts and attorneys understand the potential impact of displaying their connections to the public over the internet.