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Proceed with Caution when using Facebook as a Discovery Tool (NJ)

November 5, 2009

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The New Jersey Office of Attorney Ethics is currently investigating a firm for ethics grievances for allegedly having a paralegal “friend” a plaintiff on Facebook in a personal injury case in order to gather more information about his purported injuries.
The underlying personal injury action arose from a motor vehicle accident wherein plaintiff alleged he suffered a fractured femur when he was struck by a police car. According to the ethics complaint, defense counsel’s paralegal was instructed to scour the internet for information about plaintiff. The paralegal accessed plaintiff’s Facebook page at the direction of defense counsel.  When plaintiff increased his privacy settings, the paralegal sent plaintiff a friend request to maintain access to his page.
Plaintiff indicated that defense counsel asked very specific questions during his deposition, including whether he had traveled, gone dancing, wrestled and engaged in other activities that would tend to refute his claims about the seriousness of his injuries. Defendants then sought to enter video and other materials obtained through social media into evidence and accused plaintiff of perjury.  The personal injury action ultimately settled after the trial judge barred the evidence because it was produced after the discovery deadline.
Plaintiff in the personal injury case filed a grievance with the District 11-B Ethics Committee. The ethics committee secretary determined there was no unethical conduct and dismissed the complaint. Plaintiff then went to the New Jersey Office of Attorney Ethics, which sought ethics charges against defendant’s attorney.
In September 2012, defendants filed a complaint against the Office of Attorney Ethics seeking a declaration that the OAE lacked authority to investigate and prosecute the case. The trial court dismissed the complaint and the appellate course affirmed the decision. The case is currently pending in the New Jersey Supreme Court. We will be keeping an eye as the case continues to develop.
The message is that, while social media searches are certainly useful discovery devices, communication with a represented party, either directly or through a paralegal or investigator, crosses the line.  Thanks to Steve Kim for his contribution.  Please email <a href="">Brian Gibbons</a> with any questions.


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