Lawyers need to find witnesses. They look for assets to see if it’s worth suing or if they can collect after they win. They want to profile opponents for weaknesses based on past litigation or business dealings.

Every legal matter turns on facts. Most cases don’t go to trial, fewer still go to appeal, but

We pretty regularly find ourselves blogging about small business owners that draw people into scams.  We’ve seen the would-be movie executive, the sweet-talking investment solicitor, the landscaper and the produce company owner. Too often, we find that defrauded consumers and investors could have avoided their losses by doing some basic due diligence. 

The on-line world is abuzz today with news from Europe’s highest court that Google will have to start removing links to certain information that some judge or bureaucrat decides is irrelevant. Even if it’s true and lawfully posted, the governments of Europe now get to decide what’s suitable to read, case by casegoogle EU right to be forgotten.jpg.

We’re

Last week, the Associated Press reported that the Department of Justice had obtained confidential phone records for more than 20 telephone lines used by the staff of the Associated Press while investigating leaks of classified information.  Only days later, news surfaced that the DOJ had also accessed the phone records and emails of James Rosen

Clients often ask us whether we tape-record phone calls we make in the course of an investigation. Our brief answer is, “never.” Here is why:

  • Recording could be illegal.

Some states allow tape recording conversations if one of the two people in the conversation is aware that a tape is rolling, but some require that

Investigators need to be familiar with all the ins and outs of social media sites in order to best help their clients. For example, through social media we’ve tracked down witnesses for litigation and beneficiaries of wills and trusts. Social media is a great tool for uncovering evidence of adultery in a divorce case. In addition, social media can provide evidence of intellectual property infringements or corporate policy violations.

Unfortunately, keeping up with the changes in social media technology may be easier than keeping up with the changes in Internet law. The legal community and the courts are still trying to figure out how social media, free speech, legal ethics and privacy laws intersect. In fact, it seems like every other week there is an important judicial decision or ethical ruling regarding how social media can and cannot be used in legal and corporate investigations.

Case in point: earlier this month a federal judge in California significantly curtailed the social media postings that defendant Home Depot could obtain in an unlawful termination case brought by a former employee. The Southern California magistrate judge explained that the federal rules dictating that electronic document requests be specific and directly relevant to the lawsuit apply to social media postings as well. Therefore Home Depot’s expansive request for all posts that reveal the plaintiff’s emotional state and every photograph she posted on her social media accounts was impermissibly broad.

So what sort of social media information can investigators working for attorneys obtain for their clients? State Bar associations have been wrestling with this issue for the past several years. The general consensus appears to be that any information that a user made publically available to all members of a network can be obtained without restriction. (see the NYSBA Opinion #843 (9/10/2010) and Philadelphia Bar Opinion 2009-02 (March 2009)) This means that everything is fair game if the user’s privacy settings are turned off.

But what happens if the social media user has privacy settings that block access to anyone who is not a “friend?” In those cases clients will ask if we can overcome this pesky restriction and friend the person using an alias. Our answer is always an unequivocal “No, we can’t.”

Legal ethics decisions dictate that neither an attorney nor an agent working on their behalf, like an investigator, can gain access to any secure information if doing so requires either directly or indirectly deceptive behavior. This means an investigator can’t use an alias and pretend to know the social media user in order to be deemed a “friend” and be granted permission to otherwise restricted information.

Keep in mind that even if the investigator does not use an alias, the act may be deemed unethical. This is because the investigator has omitted a material fact to the social media user–namely that they were being contacted solely to obtain information for an attorney to be used in a pending matter.

The issue is much more complicated if the social media user is a represented or unrepresented party in a pending litigation. If the person is a represented party, then under no circumstances can they be contacted without the prior consent of their lawyer. And if they are unrepresented, then the lawyer can’t claim that they are disinterested in the issue at hand. Furthermore, if the user is unrepresented, the lawyer has an obligation to correct any misunderstandings as to their role and to ensure that they don’t offer any legal advice if the social media user’s interests conflict with those of the attorney’s client.
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