The appropriate use of social media in litigation remains an evolving issue in New Jersey. The search term “Facebook” will result in hundreds of cases spanning the civil, criminal and family law arenas. Last week, a divided Supreme Court’s Disciplinary Review Board, in the latest chapter of a lengthy legal process, admonished a New Jersey attorney for instructing his paralegal to “friend request” an adverse party in order to investigate a party’s Facebook posts. In rendering its decision, the DRB majority also recommended that the Supreme Court adopt a new policy on lawyers using social media for discovery purposes.
A majority of the board held that an admonition was warranted because the attorney violated the Rules of Professional Conduct by engaging in surreptitious communication with a person he knew was represented by counsel, and failing to supervise a paralegal. The Board stated:
“Although this matter confronts the application of rules developed in an ‘analog’ world to conduct committed in what is now a ‘digital’ world, the non-existence of technology at the time the rules were drafted does not transform the conduct under scrutiny into novel behavior,” said the DRB’s four-member majority. “Rather, respondent’s misconduct, neither unique nor new, simply took place in a more modern forum. The forum does not change the nature of the misconduct or the necessity for respondent to be aware of his professional obligations.”
The Board’s decision is subject to final approval by the New Jersey Supreme Court. The board members agreed that accessing and viewing publicly available information on someone’s social media page, a common practice, is permissible. An attempt by an attorney or the attorney’s subordinates or client, to access a represented party’s private social media, however, according to the Board, constitutes an improper communication, in violation of Rule of Procedure 4.2. The photographic information obtained in this case showed a plaintiff allegedly able to participate in certain physical activity, including a video.
The admissibility of Facebook evidence at trial will continue to be a subject of judicial scrutiny and appellate review. For example, in Angelse v Nieves, an unpublished 2018 Appellate Division decision, the Court reversed and remanded a plaintiff’s verdict based upon the trial Court’s exclusion of Facebook photos of plaintiff taken from a public Facebook page. The proffered evidence showed a plaintiff, who claimed to be disabled, standing next to exercise equipment. The Appellate Division held that the evidence was relevant and capable of being authenticated by plaintiff’s own testimony. See Angeles v. Nieves, 2018 WL 3149551 Unpublished (App. Div. 2018).
Lastly, in the Chancery Court matter of K.A. and K.I.A, 450 N.J.Super. 247 (Ch. Div. 2016), the Court held that service of process through the Facebook social media platform, after service via certified mail was ineffective, was permitted. The Court stated that service through Facebook was reasonably calculated to apprise a party of the pendency of the action and afford him an opportunity to respond, in that receipt of the documents was probable and Facebook included a feature that allowed the sender of a message to see whether the recipient had opened the message. There are no reported cases expanding this practice to civil cases.
Social media will only continue to evolve and expand in our everyday communications. All practitioners are encouraged to continuously monitor the Courts’ interpretations of attorney conduct, admissibility of evidence and best practices in these “virtual” online times.