January 01, 2012

Scruples: Pretexting and Discovery of Social Media

An examination of the rules governing a lawyer's use of social media for discovery.

Michael Downey

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“They’re at it again,” Paradox's voice exploded on the telephone, jarring Ethox back from pondering judicial canons. “Kaye’s lawyers are asking Jay all sorts of questions about his social networking sites. It is not going well.”

“What are you talking about?” Ethox interrupted.

“Oh, sorry. Paradox here. I’m defending Jay’s deposition in the Jay-Kaye Partnership dispute,” Paradox explained. “We are on break. Kaye’s lawyers have been tracking Jay through his Facebook and Twitter accounts for months. Both accounts have passwords. Can they view the sites?”

“There is probably no applicable privilege. But Kaye’s lawyers may have violated ethics rules,” Ethox responded. “How did they get access?”


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