eDiscovery Daily Blog

Another Case of Judicial “Friending”, But with a Different Result: eDiscovery Case Law

This is the second case we’ve seen recently regarding judges and Facebook “friendship” with other parties – here’s the other one where the case was the reversed and remanded for further proceedings before a different judge due to the judge’s Facebook “friendship” with one of the parties.  This time, it’s the judge’s Facebook friendship with one of the attorneys in the case.  This one had a different outcome.

In the Florida Bar Journal web site (Face-Off on Facebook: Judges and Lawyers as Social Media “Friends” in a Post-Herssein World, written by Ralph Artigliere, William F. Hamilton, David Hazouri, Jan L. Jacobowitz, and Meenu Sasser), the authors ask the question: “Should a judge be disqualified from a case based solely on a Facebook friendship with one of the attorneys?”

The Florida Supreme Court recently answered the question in the negative in Law Offices of Herssein & Herssein, P.A. v. United Servs. Auto. Ass’n, Case No. SC17-1848, (Fla. Nov. 15, 2018), when it held that “an allegation that a trial judge is a Facebook ‘friend’ with an attorney appearing before the judge, standing alone, is not a legally sufficient basis for disqualification.”

The decision brings Florida in line with the majority view in other states that “have adopted an attitude of, ‘it’s fine for judges to be on social media, but proceed with caution.’”

The authors do a great job discussing the scope of the decision, traditional standards for reasonable basis for a motion to disqualify, the explosion of social media, aspects of judicial disqualification historically and guidance for lawyers and judges after the decision, among other topics.  Instead of recounting them here, I encourage you to read the article.

When we covered the other case – In Re the Paternity of B.J.M., Appeal No. 2017AP2132 (Wis. App. Feb. 20, 2019) (technically after the case written about in the Florida Bar Journal site covered in this post) – in our webcast last week (Key eDiscovery Case Law Review for the First Half of 2019), I asked Tom O’Connor if judges should ever accept social media friend requests from litigants.  Of course, he gave the answer I would have expected: “it depends”.  In the case we covered, the judge deciding the motion accepted one of the party’s “friend” request on Facebook – after the parties had submitted their written arguments – and he ultimately ruled in her favor.  Even though the Judge didn’t “like” or comment on any of the party’s posts or reply to any of her comments on his posts, when he subsequently granted the party’s modification motion.  The Court of Appeals of Wisconsin, concluding that “the circuit court’s undisclosed ESM connection with a current litigant in this case created a great risk of actual bias, resulting in the appearance of partiality”, reversed and remanded the case for further proceedings before a different judge.  Clearly, timing played a part in that ruling.  So, should judges be friends with parties or attorneys appearing in their cases?  It depends.  :o)

So, what do you think?  Should judges accepting friend requests from litigants or attorneys disqualify them from ruling in their cases?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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