Ethical Considerations for Blog-related Discovery
| Citation | Vol. 5 No. 1 |
| Publication year | 2008 |
Abstract
The rise in blogs (short for "Web-logs") has spawned a new world of considerations for lawyers and clients. At their foundation, blogs are Web sites that serve as online diaries and sounding boards. Blogs typically consist of posts, pictures, images, links, and other entries that run the gambit of subjects from politics to sports to literature to personal materials. The exponential rise in blogging stems from improvements in technology, the increasing sophistication of Internet users, and the low cost of creating and maintaining blogs. In the last several years, blogs have mushroomed in number and have achieved a measure of legitimacy and legal protection. At the same time, blogging is also creating its own unique brand of legal issues. Of specific concern to lawyers are the ethical issues surrounding a lawyer's use of blogs, particularly as blog-based discovery becomes more and more common. This article will provide an overview of a lawyer's obligations under the Model Rules of Professional Conduct and the corresponding Washington Rules of Professional Conduct with respect to blog-based discovery.
Introduction
The recent rise in blogs (short for "Web-logs") has spawned a new world of considerations for lawyers and clients. At their foundation, blogs are Web sites that serve as online diaries and sounding boards. Blogs typically consist of posts, pictures, images, links, and other entries that can run the gambit of subjects from politics to sports to literature to personal materials. Blogging's exponential rise stems from improvements in technology, the increasing sophistication of Internet users, and the low cost of creating and maintaining blogs. In the last several years, blogs have mushroomed in number and have achieved a measure of legitimacy and legal protection.(fn2) Indeed, the increased use of blogs by news services, political commentators, and candidates has catapulted blogs into the national consciousness. The companies using blogs range from Google(fn3) to General Motors(fn4) to Southwest Airlines.(fn5)
Of course, blogging is also creating its own unique brand of legal issues. Of specific concern to lawyers are the ethical issues surrounding a lawyer's use of blogs, particularly as blog-based discovery becomes more and more common. Lawyers may utilize blogs through informal methods of discovery, such as monitoring a party's blog, or through the traditional methods of discovery under the Rules of Civil Procedure, such as requesting information relating to blogs and bloggers. This article will provide an overview of a lawyer's obligations under the Model Rules of Professional Conduct ("Model Rules")--and the Washington Rules of Professional Conduct ("Washington Rules"), which largely adopt the Model Rules--with respect to blog-based discovery.(fn6)
Use of Blogs in Formal Discovery
Parties have begun to see blogs as a potential source of discovery in litigation. Starbucks, for example, sought blog-related discovery in connection with its defense against a Fair Labor Standards Act collective action.(fn7) More specifically, Starbucks sought discovery of any "Internet handles" used by any of the plaintiffs in making any postings about Starbucks.(fn8) Starbucks argued such information would lead to the discovery of Internet postings it believed the plaintiffs had made regarding the number of hours they worked and the nature of their duties.(fn9) The court denied the request until such time as Starbucks has established that the plaintiffs had made such postings.(fn10) As the popularity of blogging continues to rise, it appears inevitable that discovery will increasingly involve investigation of Internet postings on blogs.(fn11) To the extent such discovery occurs within the boundaries of the applicable Rules of Civil Procedure, there is likely little risk that use of blogs in this context will run afoul of the Model Rules or the Washington Rules.
Use of Blogs in Informal Discovery
In addition to being a potential source of formal discovery, blogs are also emerging as fertile ground for informal discovery.(fn12) Some examples of potential uses of blogs for informal discovery purposes include monitoring an opposing party's blog for useful tidbits of information or searching for potential witnesses to support a case.(fn13)
It is in this context that questions under Rules 4.2 and 4.3 of the Model Rules and Washington Rules arise. In particular, the use of blogs in this fashion raises the issues of whether blogging constitutes a "communication" for purposes of the Model Rules and Washington Rules and, if so, whether that communication runs afoul of the rules for communicating with a represented or unrepresented party.
The Rules
According to the American Bar Association, forty-seven states have rules of professional conduct relating to lawyers that follow the format of the Model Rules.(fn14) In addition, thirty-nine states have generally adopted the comments to the Model Rules.(fn15) Thus analysis under the Model Rules can serve as a useful guideline in addressing questions of lawyers' ethical responsibilities.(fn16)
The Model Rules and Washington Rules include two rules that generally govern communications by lawyers with persons...
To continue reading
Request your trial