New (and Possibly Billable) Uses for Facebook: Discovery Tricks

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By Brian Kumnick on May 11, 2009 6:32 PM

For a new generation of lawyers (and anyone who spends the workday in front of a computer, really) Facebook belongs with Minesweeper and Solitaire in the pantheon of time-wasting applications.  Keep up with your friends, make new friends, answer once and for all that burning question, Which Scooby-Doo Character Are You?; it's all right there, just waiting for your next ten-minute block of free time.

Some of your motivated fellow associates, though, have been savvily turning Facebook and other social sites into research tools, seeking discoverable information within the social-network profiles of both opposing parties and witnesses.  But while this seems like a great way to turn an entertaining time-killer into a source of billable hours, there are, inevitably, limits.

As reported last week by Legal Blog Watch, one lawyer recently asked the Philadelphia Bar Association for an advisory opinion on whether an attorney can ask a third party to "friend" a witness on a social network, in order to gain access to the less-public portions of her profile.
The bar committee's answer: a resounding, unsurprising no.  Third-party friending, according to the guidance committee, would violate rules against "dishonesty, fraud, deceit or misrepresentation," and would constitute "the making of a false statement of material fact to the witness."

So that's one avenue of legal investigation foreclosed upon.  But don't let that stop you from using Facebook for legitimate searches of publicly-available profile material -- or from finding five minutes to take that Scooby-Doo quiz.