We're responsible for being able to uncover much more information than we were in the past.
By Megan Zavieh
The “duty to Google” is a shorthand way of saying that when information is publicly and easily available, it simply cannot be ignored. This is not a new concept and not one specific to Google. However, in a digital age with some late and resistant adopters, it bears repeating that we have a duty to Google.
There’s No Ignoring the Obvious
Lawyers have never been able to bury our heads in the sand and ignore what is right in front of us. In court, when an argument clearly lacks merit, we are admonished not to make it. (See ABA Model Rule 3.1, Meritorious Claims and Contentions.) We cannot allow a court to labor under a misconception of fact or law when we know about it. (See Model Rule 3.3, Candor Toward the Tribunal). And in some states, lawyers even have to report misconduct when they see it. (See Model Rule 8.3, Reporting Professional Misconduct.)
So, it should come as no surprise that we also cannot ignore obvious, easily accessible sources of relevant information. The reason it seems “new” is not that the duty has changed, but that the availability of information has changed dramatically since the advent and proliferation of the internet. Now, information that once required physical trips to research facilities or an investigator’s services to uncover can be had by speaking into a handheld device found in nearly everyone’s pocket.
Thus, the application of the duty has expanded. We are responsible for knowing and being able to uncover much more information than we ever were in the past.
What Courts Have to Say
In individual cases, courts around the country have opined that information that is readily available online cannot be ignored. They have made these rulings in cases involving diverse topics, including social media, jury selection and service of process, to name a few.
Further, courts have recognized the readily available nature of internet searches and placed burdens on attorneys to utilize those resources.
A Maryland appellate court commented in Griffin v. Maryland, 192 Md. App. 518 (2010), that it is a “matter of professional competence” to investigate social media in a lawyer’s cases.
The Missouri Supreme Court in Johnson v. McCullough, 306 S.W.3d 551, 559 (Mo. 2010) (en banc), imposed an affirmative duty to perform online searches as part of jury selection investigation. The complaining party said they were not aware that a juror had been involved in litigation in the past. The court said, “[I]n light of advances in technology allowing greater access to information that can inform a trial court about the past litigation history of venire members, it is appropriate to place a greater burden on the parties to bring such matters to the court’s attention at an earlier stage.”
In Munster v. Groce, No. 18A02-0409-CV-738, n.3 (Ct. App. Ind. 2005), an Indiana appellate court made it abundantly clear that a plaintiff’s attorney seeking to locate an absent defendant had a duty to Google the defendant to try to locate him. (Embarrassing to the attorney, the court did a Google search and found significant additional information that would have helped the plaintiff’s lawyer in locating the defendant.)
In a similar situation, a Florida appellate court in DuBois v. Butler, 901 So.2d 1029 (2005), expressed concern that a lawyer seeking to locate the defendant only called directory assistance, a tool not even known to some of our younger lawyers, and had not sought online search assistance. The court even referred to the old-fashioned mode of looking for an individual as being akin to “the horse and buggy and the eight-track stereo.”
Corollaries to the Analog World
Perhaps the easiest way to conceptualize the extent of the duty to Google is to make analogies to the analog world. If you believe a party has fraudulently transferred property, you would have a duty to investigate whether that is true. That duty would include going to the county recorder’s office to see if, in fact, a transfer ever took place. Similarly, if you suspect an individual of being in a specific place at a specific time, you’d have a duty to investigate whether that was true by, perhaps, asking people who were at that location at the specified time whether the other individual was also there.
In a digital world, if you suspect someone fraudulently transferred a property, in addition to visiting the county recorder’s office you could look up the property in online databases, or search its history in free resources such as Zillow. That’s not to say those resources would be as reliable as the recorder’s office. But if the information you needed turned out to be as readily available as a free online resource, you would have a hard time convincing a court you had done sufficient due diligence if you failed to look there.
Similarly, when seeking to determine if an individual was at a specific place at a specific time, checking things like social media feeds would seem an easy and logical thing to do. People check in at various locations, post pictures with other people in them and tag them, and otherwise comment in real time on where they are and what they are doing. This information is sometimes posted privately, but it can also be public. To not look at all would be foolish and a dereliction of your duties.
Navigating a Google World
Triggering of the duty is not something we can tell just by looking at the rules. As you may notice, the ABA Model Rules and individual state rules don’t mention Google specifically. But we do have a routine factual inquiry and factual obligations. For instance, if you are investigating potential jurors, Google their names. If you are cross-examining a witness, Google them. When drafting a complaint containing factual allegations, Google the underlying facts to see if you find anything that contradicts your story. In fact, when a new client comes to you, it makes sense to Google them, too. It really should be part of your client screening process.
So next time you have a basic factual inquiry, don’t forget to hop online and check out the facts as part of your due diligence. Online resources should not be ignored, and our ethics rules do not allow it.