Facebook Discovery in Divorce and Family Law: How To's

In many divorce and family law cases, a party might determine that evidence from Facebook is important in their case as it relates to a variety of issues, including property and debt division, child custody, spousal misconduct or a variety of other issues.

a. Subpoenaing Facebook for Relevant Records

Once you and your attorney have decided that social media content will be or could be important to your divorce or family law case, your attorney generally has several initial options:

  • First, they can obtain the consent of the other party to produce the requested data.
  • Second, they can attempt to subpoena the provider.
  • And finally, they can attempt to compel the opposing party to produce the data.

The best two options are typically to acquire consent or to subpoena the opposing party. If your attorney subpoenas the opposing party, they may be forced to explain to the judge why such materials are relevant, and they may have difficulty with access and the formatting of information. Users are only able to provide the information in screenshots and may not even have access to all of their historical data.

Even still, user consent or a subpoena to the user may be the best option because often social media providers are not particularly cooperative, and even if they are helpful, they are still expensive. For example, Facebook at one time charged a non-refundable $500 processing fee in addition to a $100 notarized declaration of the records authenticity. Also, in the case of Facebook, your attorney will need either a valid California or federal subpoena.

Even if your attorney is successful in subpoenaing Facebook, you may receive limited information. The company has over 30,000 servers located in several data centers across the United States. If the company responds it may provide a "Neoprint," which it describes as an expanded view of a given user profile. This may include the user's physical address, e-mail address, phone number, and IP address. Facebook also may provide a "Photoprint," which is a "compilation of all photos uploaded by the user that have not been deleted, along with all photos uploaded by any user which have the requested user tagged in them."

Some speculate that in the wake of Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965 (C.D. Cal. 2010), and the Stored Communications Act, that it appears unlikely that MySpace and Facebook would divulge private content subject to a civil subpoena without the user's consent. In fact, Facebook's own policy seems to answer this question: "Federal law prohibits Facebook from disclosing user content (such as messages, Wall (timeline) posts, photos, etc.) in response to a civil subpoena." "Specifically, the Stored Communications Act, 18 U.S.C. §2701 et seq., prohibits Facebook from disclosing the contents of an account to any non-governmental entity pursuant to a subpoena or court order."  Now, however, an individual's entire Facebook profile is downloadable by the user thus mitigating the need to subpoena the provider.

Other social media websites such as MySpace pose even greater difficulties as they require additional information such as user id, password, and birth date. Even once you have gathered such information, you are likely to run into issues with what information contained in the profiles is discoverable.

b. What Can Be Done if the Account's Been Closed?

What to do if the account has been closed? Facebook's policy states:

"If a user cannot access content because he or she disabled or deleted his or her account, Facebook will, to the extent possible, restore access to allow the user to collect and produce the account's content. Facebook preserves user content only in response to a valid law enforcement request."

Facebook's website states that it takes approximately one month for an account to be deleted, but also states that some information may be contained in back-up copies for up to 90 days. Further, even if an account has been deleted, some pieces of information like messages or group postings will remain because they are not stored on your account. If an account has merely been de-activated, as opposed to deleted, Facebook will retain all of the information in the profile indefinitely in case you choose to re-activate. You may be able to distinguish between the two, because if the account is merely de-activated, the user will still appear on others' friends lists.

What this means is that all is not lost when the opposing party responds with "what Facebook account?" If a party can still see the target on their friends list, you know the account is merely deactivated. This means it could be reactivated and downloaded by the user or that you should expect data, if Facebook were to comply with your subpoena. Also, even if the account has been deleted, you might stand a decent chance of still acquiring some information for a period up to 90 days. Even after 90 days, one might be able to acquire data from other users who communicated with your target.

If you are a party going through a divorce or family law case and think that Facebook, and other social media evidence might be helpful, hire a law firm that can help.  This is a highly technical area of the law that requires legal counsel.  You can call Stange Law Firm, PC at 1-855-805-0595.

Keywords: Discovery, Divorce, Family Law, Facebook