1. THE ETHICAL IMPLICATIONS
OF SOCIAL MEDIA
Brian C. Focht
Stiles Byrum & Horne, LLP
www.thecyberadvocate.com

2. THE ETHICS OF SOCIAL MEDIA
PART 4:
SOCIAL MEDIA IN
DISCOVERY

3. SOCIAL MEDIA & THE COMPETENT ATTORNEY
NC RULES OF PROFESSIONAL CONDUCT
Important Provisions
1.1 – Competence
1.6 – Confidentiality
3.3 – Candor Toward the Tribunal
3.4 – Fairness to Opposing Party and Counsel
3.5 – Impartiality and Decorum of the Tribunal
4.2 – Communication with Persons Represented by Counsel
8.2 – Judicial and Legal Officials

4. SOCIAL MEDIA & THE COMPETENT ATTORNEY
Situation: Requesting Social Media in discovery
Applicable Rule(s): 1.1, 3.4, 4.2, 5.1, 5.3
To Comply: Know when you should request Social Media
in discovery; refrain from fishing expeditions
Understand when it’s necessary for your case
Narrowly tailor your requests
Know the limits of ethical research

5. SOCIAL MEDIA & THE COMPETENT ATTORNEY
Situation: Requesting Social Media in discovery
Applicable Rule(s): 1.1, 3.4, 4.2, 5.1, 5.3
To Comply: Know when you should request Social Media
in discovery; refrain from fishing expeditions
Tips:
1. Don’t accidentally limit your request by listing specific
social media sites
2. Picture-based SM such as Flickr, Picasa and Instagram
can be treasure troves

6. SOCIAL MEDIA & THE COMPETENT ATTORNEY
Situation: Requesting Social Media in discovery
Applicable Rule(s): 1.1, 3.4, 4.2, 5.1, 5.3
To Comply: Know when you should request Social Media
in discovery; refrain from fishing expeditions
Tips:
REMEMBER: Just because you CAN request it doesn’t mean you
SHOULD

7. SOCIAL MEDIA & THE COMPETENT ATTORNEY
Situation: Requesting Social Media in discovery
Applicable Rule(s): 1.1, 3.4, 4.2, 5.1, 5.3
To Comply: Know when you should request Social Media
in discovery; refrain from fishing expeditions
Example Request:
“[A]ny notes, diaries, logs, journals, letters, electronic mail, text messages,
calendars, Facebook postings, tweets, or other social media messages that
relate or refer to your employment with the GDRTA, your alleged serious
health condition, or your activities on days when you requested FMLA
leave.”
Wilkinson v. Greater Dayton Reg’l Transit Auth., 2014 U.S. Dist. LEXIS
64522, 9 (S.D. Ohio May 9, 2014).

8. SOCIAL MEDIA & THE COMPETENT ATTORNEY
RELEVANCE OF SOCIAL MEDIA IN DISCOVERY
Recent Decisions
Salvato v. Miley, No. 5:12-cv-635 (M.D. Fla. June 6, 2013)
- In action against sheriffs’ deputies, requesting defendant’s entire
Social Media history was unnecessary fishing expedition

9. SOCIAL MEDIA & THE COMPETENT ATTORNEY
RELEVANCE OF SOCIAL MEDIA IN DISCOVERY
Recent Decisions
Moore v. Miller, No. 1:10-cv-651 (D. Colo. June 6, 2013)
- In personal injury action, plaintiff’s entire Facebook account history
was discoverable

10. SOCIAL MEDIA & THE COMPETENT ATTORNEY
RELEVANCE OF SOCIAL MEDIA IN DISCOVERY
Recent Decisions
Giacchettov.Patchogue-MedfordUnionFreeSch.Dist.,No.CV11-6323
(E.D.N.Y.May6,2013)
- Discovery requests for all Social Media too much, but relevant posts
discoverable
- If so requested, it is the responsibility of the responding party’s
attorney to review the client’s social media for relevant material, NOT
the client themselves.

11. SOCIAL MEDIA & THE COMPETENT ATTORNEY
RELEVANCE OF SOCIAL MEDIA IN DISCOVERY
Recent Decisions
Howellv.BuckeyeRanch,Inc.,No.11-cv-1014(S.D.OhioOct.2012)
- Discovery of Social Media subject to “traditional relevance
analysis”

12. SOCIAL MEDIA & THE COMPETENT ATTORNEY
RELEVANCE OF SOCIAL MEDIA IN DISCOVERY
Laws to Know
Stored Wire and Electronic Communications Privacy Act
- Social Media companies will frequently object to subpoenas for
production of records of customers’ social media accounts based on
the provisions of this statute.

13. SOCIAL MEDIA & THE COMPETENT ATTORNEY
Situation: Responding to discovery requests for SM
Applicable Rule(s): 1.1, 3.3, 3.4
To Comply: Produce relevant evidence; defend clients from
overbroad requests, fishing expeditions.
Same ethical obligations as any other discovery response
N.C.StateBarv.Graves,50N.C.App.450,274S.E.2d396(1981)
- Intentionally encouraging concealment of material facts relevant to
the matter is prejudicial to administration of justice.

14. SOCIAL MEDIA & THE COMPETENT ATTORNEY
BEST PRACTICES:
1. Remember: THE RULES STILL APPLY
2. Learn about Social Media, and how to use it – it’s the
best way to know what you can find in a party’s
social media
3. Always do your due diligence.

15. THE ETHICAL IMPLICATIONS
OF SOCIAL MEDIA
Brian C. Focht
Stiles, Byrum & Horne, LLP
bfocht@sbhlaw.net
www.thecyberadvocate.com