§9.6 - Investigations Through Electronic Social Media and Other Public Internet Sources

• Jurisdiction: Washington

§9.6 INVESTIGATIONS THROUGH ELECTRONIC SOCIAL MEDIA AND OTHER PUBLIC INTERNET SOURCES

Concepts of privacy have been reshaped by electronic social media. As a result, people from all walks of life now routinely post information about themselves in the digital public square that simply would not have been openly available a generation ago. Although these electronic self-portraits are, in appropriate circumstances, subject to formal discovery under CR 26(b)(1), the tactical element of surprise that independent investigation affords can prove vital in making the most effective use of the information involved. Similarly, although jurors provide basic background information about themselves during voir dire, the ability to independently investigate how a prospective juror sees him- or herself in an electronic self-portrait can provide crucial insights on whether or not to exercise a challenge.

Although investigations can yield critical information, they are also subject to important constraints. This section explores those constraints that apply to lawyers and those working with them when searching through the web and social media postings for opposing

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parties, witnesses, and jurors. As of this writing, neither the Washington appellate courts in the form of decisional law nor the WSBA in the form of an advisory opinion have issued comprehensive guidance on the emerging issues involved. Therefore, this section includes a discussion of influential ethics opinions nationally

The applicable LLLT RPCs in this area (for example, LLLT RPCs 4.2, 4.1(a), and 8.4(c)) are similar to their lawyer RPC counterparts. Further, RPC 5.10 generally imposes duties on lawyers to supervise LLLTs working for them that are similar to those applicable to nonlawyer assistants under RPC 5.3.

(1) Opposing parties

With opposing parties, the primary concern is RPC 4.2—the "no contact" rule. RPC 4.2 broadly prohibits interactive communication— whether "real time" or delayed—with represented parties. As discussed earlier in this chapter, it applies with equal measure to represented individuals and, under Wright v. Group Health Hospital, 103 Wn.2d 192, 691 P.2d 564 (1984), to the "speaking agents" of represented entities.

The ethics opinions that have examined this facet of social media investigations focus on whether there is any "communication" via the particular electronic venue involved. N.Y. State Bar Ass'n Op. 843 (2010) and Or. State Bar Formal Op...