Lawyers should inquire about a witness’ social media presence

There is a current discussion about a lawyer’s obligation or responsibility to make inquiries into a witness’ social media pages, and the information contained therein. I don’t think anyone is suggesting that the information is not discoverable.  But, the Philadelphia Bar has opined in its Professional Guidance Committee Opinion 2009-02 (March 2009) that deceit sanctioned by or authorized by the lawyer to get the information is not permitted.

The essence of the facts are: "…The inquirer proposes to ask a third person, someone whose name the witness will not recognize, to go to the Facebook and Myspace websites, contact the witness and seek to “friend” her, to obtain access to the information on the pages. The third person
would state only truthful information, for example, his or her true name, but would not reveal that he or she is affiliated with the lawyer or the true purpose for which he or she is seeking access, namely, to provide the information posted on the pages to a lawyer for possible use antagonistic to the witness. If the witness allows access, the third person would then provide the information posted on the pages to the inquirer who would evaluate it for possible use in the litigation."

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