I. Introduction
Technology is advancing every day. The affect it has on family law has been growing just as fast. From before the case, to discovery, during the case and even after, technology can both positively and negatively affect the outcome of any case. These new sources can be used to target pieces of information beyond those found in the traditional sources of information.
A recent survey by the American Academy of Matrimonial Lawyers (AAML) revealed that social networking sites have become a hot source for evidence. Over eighty percent of family law attorneys surveyed found that they have seen an increase in the amount of divorces using social networking evidence over the past five years. Facebook was found to be the biggest online source, followed by MySpace and Twitter. Facebook is now cited in a third of all divorce cases, according to a Washington Times survey. This is because Facebook posts, messages, and pictures, along with geo-location, is an “ongoing log of our lives.”
Without thinking, many people have given clues about their infidelity, habits, assets, and lifestyle on their Facebook profile. This can be in the form of public postings, chats, and most frequently through photos. Online activities can then be used as evidence during a divorce or custody battle.
There are numerous social networking sites out there including: Facebook (over 1.5 billion users); Twitter (over 320 million users); Google Plus; Linked-In; MySpace; and a variety of others. People often use these websites daily, which contain a treasure trove of information. As proof of this, eighty-one percent of American Academy of Matrimonial Lawyers (1600 surveyed) recently reported increased use of social media evidence. Discovery utilizing these websites may reveal: postings that display a timeline of actions; time spent away from children or spouse; boastings of compensation, promotions, or use of unknown assets; photographs of inappropriate behavior; potential witnesses (thereby minimizing the need for private investigators); and/or extreme ideologies or beliefs.
A. What Type of Information to Look For
Simply put, what to look for depends on what type of case you have and what types of allegations you are seeking to prove or disprove. Knowledge of what you need to prove your point is crucial because of the volumes of potential Electronically Stored Information (hereinafter referred to as “ESI”) out there. Not only will a broad meandering search waste a lot of your client’s money, but also such attempts are likely to be characterized as an impermissible fishing expedition by the court.
Let traditional sources inform your use of new electronic sources. If you would typically subpoena bank records and credit card statements you might consider examining a computer’s spreadsheets for financial information. Or, perhaps you would consider looking for messages to or from known business associates. If you are looking to prove some sort of conduct between the parties, you might start with emails and text messages. Communications might provide for abundant examples of verbal abuse or promises broken. If allegations of substance abuse or adultery have been leveled, you might consider mining for geolocation data that can show husband or wife was at the bar instead of the soccer game. Finally, consider often-overlooked aspects of social media, like status updates and friends lists.
This means you even need to be efficient once you locate your ESI source. Careful selection of keyword searches can be crucial to obtaining information relevant to your case. Through the various social networking web pages valuable information can be obtained regarding adverse parties, key players in your case, and expert and non-expert witnesses. Keyword searches can be performed in various search engines, including Google, Yahoo or Bing. Research can also be performed on Westlaw. Through these vehicles, you can often find invaluable information including contact information, employment information, social information, and habits of various parties in your case.
Facebook is the unrivaled leader for turning virtual reality into real-life divorce drama. Examples of evidence on Facebook to be used in divorce: Husband sets his profile as single and childless while seeking custody. Husband denies anger management issues but posts on Facebook in his “write something about yourself” section: “If you have the balls to get in my face, I’ll kick your ass into submission.” Mom denies in court that she smokes marijuana but posts partying, pot-smoking photos of herself on Facebook.
There are some important basics to know about key word searching. For instance, it can sometimes be wise to focus on items most likely to be discarded or overwritten first, like emails, instant messages, and Facebook Messenger. For example, if the evidence of an instant messaging conversation on Facebook appears to no longer exist of the party in question’s account, try seeking the information from the receiving party to see if they have the conversation archived. On Facebook, both or all parties privy to an instant messaging conversation must delete the conversation for it to appear to be non-existent. When doing so, and in searching in general, consider the Who, What, When, Where, Why, and How of your case. It might prove fruitful to search thorough known associates’ profiles because the party in question may have been tagged or included in their posts, photos, and etc. Additionally, if at all possible, remember to discuss with the custodian of the system the possible abbreviations used by the party in question. Try to focus on important dates that might help sift through potentially voluminous amounts of information. Try looking for any known pseudo names or nicknames. It may aid your search to know important dates so you can tie them to photos that may provide circumstantial indicia.
II. Subpoenaing Facebook for Relevant Records
Many Computer and E-discovery issues are covered by federal statutes and the Federal Rules of Civil Procedure. However, it is also vital to check local rules of civil procedure in your jurisdiction. Below are various applicable Federal Rules of Civil Procedure that sometimes mirror state rules:
Fed. R. Civ. P. 1001(1) – Writings and recordings includes computers and photographic systems.
Fed. R. Civ. P. 26(a)(1)(C)– Obligates parties to provide opponents with copies of or descriptions of documents, data compilations, and tangible things in a party’s possession, custody, or control.
Fed. R. Civ. P. 34 – Permits a party to serve on another party a request to produce data compilations (subpoena). This can include word processing files, spreadsheet files, investment data or databases, calendars, browser histories, contact lists, digital photographs, email and social media. These and other miscellaneous information can be found on: hard drives, floppy disks, optical disks, flash drives, network storage, remote storage, cell and smart phones and virtually any electronic source.
The Stored Communications Act (“SCA”) can also come into play in a variety of electronic discovery settings. An “electronic communication service” (“ECS”) is defined as “any service which provides to users thereof the ability to send or receive wire or electronic communications.” A “remote computing service” (“RCS”) is defined as one that provides “computer storage or processing services by means of an electronic communications system.” ECS providers are prevented from knowingly disclosing the contents of an electronic communication while in electronic storage by that service. A provider of a remote computing service is permitted to release the contents of a communication to the addressee or intended recipient, but cannot disclose electronic communications carried or maintained by that service solely for the purpose of providing storage or computer processing. Several courts have held that data held by an ECS are exempt from the reach of subpoenas in civil actions.
A. How Long Does Facebook Keep Personal Digital Data on its Servers?
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.”
B. Subpoenaing Facebook for Relevant Records
Once you have decided that social media content will be or could be important to your case, you have several initial options. First, you can obtain the consent of the other party to produce the requested data. Second, you can attempt to subpoena the provider. Finally, you can attempt to compel the opposing party to produce the data.
Your best two options are typically to acquire consent or to subpoena the opposing party. If you subpoena the opposing party, you may be forced to explain to the judge why such materials are relevant, and you 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 your 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. Additionally, in the case of Facebook, you need either a valid California or federal subpoena.
It is extremely important to note that, “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, an individual’s entire Facebook profile is downloadable by the user, thus mitigating the need to subpoena the provider. If the sought after information is not able to be obtained through subpoena, there are other methods to which limited information can be acquired. 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 and the SCA that it appears unlikely that MySpace and Facebook would divulge private content, subject to a civil subpoena, without the user’s consent
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.
C. What Can Be Done if the Account’s Been Closed
All is not lost when the opposing party responds with “what Facebook account?” If your client 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. The information on the Timeline will not be visible and the account will not be visible in search inquiries. Even if the account has been deleted, you know you stand a decent chance of still acquiring some information for a period up to 90 days. It takes up to 90 days to permanently delete the account. Even after 90 days you might be able to acquire data from other users who communicated with your target. Additionally, copies of log records may remain in Facebook’s databases because they store the information for technical purposes.
III. Ethical Risks of Using “Friending” to Obtain Personal Information
Many have probably considered “friend-ing” someone to avoid having to seek consent or to avoid the cost of subpoenaing social media outlets and their users. This, however, is a dangerous proposition because the vast majority of states have adopted the Model Rule of Professional Conduct 8.4. The Missouri Supreme Court Rule 4-8.4 governors misconduct, and states that it is professional misconduct for a lawyer to:
(a) Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(b) Commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects;
(c) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. It shall not be professional misconduct for a lawyer for a criminal law enforcement agency, regulatory agency, or state attorney general to advise others about or to supervise another in an undercover investigation if the entity is authorized by law to conduct undercover investigations, and it shall not be professional misconduct for a lawyer employed in a capacity other than as a lawyer by a criminal law enforcement agency, regulatory agency, or state attorney general to participate in an undercover investigation, if the entity is authorized by law to conduct undercover investigations.
Thus, it would seem that “friend-ing” an opposing witness or even worse an opposing party would likely violate this rule (communicating with the opposing party would also violate Rule 4.2).
Specifically, two bar opinions have addressed this issue. The Philadelphia Bar Professional Guidance Committee found an investigator, working for a lawyer, could not send a friend request to a hostile third party witness. The opinion concluded that this was deceptive, even though the investigator’s profile contained accurate information. The act was deceptive because the investigator was omitting a highly material fact; that the purpose was to provide access to the attorney.
Contrary to this, the Bar of the City of New York Committee on Professional Ethics found it was ethical for an attorney or agent of the attorney to “use her real name and profile to send a friend request to obtain information from an unrepresented person’s profile.” The opinion did find an ethical violation where the lawyer uses a fake profile to send the friend request (coincidentally this would violate most terms of use agreements with social network providers).
Additionally, somewhat related, the San Diego County Bar Association’s Legal Ethics Committee dealt with a similar issue. There the lawyer sought to friend two employees of the defendant’s company in hopes that they would let their guard down over social media. The committee rejected both arguments put forward. It determined that “friend-ing” a represented party is different than accessing an opposing party’s public website, and it found that “friend-ing” is within “the subject of representation.”
Model Rule 8.4 is by no means, the only ethical rule potentially implicated when an attorney seeks to friend a witness or opposing party. Model Rule 4.1 requires that in the course of representing a client that the lawyer not knowingly “make a false statement of material fact to a third person.” The rule prohibits misrepresentations that “occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements.” Since a material fact is one that could influence the listener, the act of omitting the purpose behind the friend request could prove to be a violation of Rule 4.1.
Further, Rule 4.2 provides an obstacle for this behavior. Rule 4.2 states that: “In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.” There is nothing to suggest that this rule does not apply to electronic communications. However, an argument can be made that “friend-ing” is merely accessing public information, which is not prohibited by the rule. For instance, if the opposing party runs a website, there is nothing prohibiting the opposing attorney from perusing that website.
Model Rule 4.3 seems to address the attorney “friend-ing” a third party witness. Model Rule 4.3 requires that a lawyer, in “dealing on behalf of a client [,]” ensure that an unrepresented party understands the lawyer’s interests in communicating with that person and must proactively clarify misunderstandings that the party may hold. Here again, it is likely that an attorney or his agent would have a duty to inform that they are not merely a neutral third-party.
Many view the “friend-ing” of an opposing party or witness to be similar to an undercover investigation. In both instances, the attorney is placed in a situation where “misrepresentation” is certainly more likely and perhaps key to obtaining information. The difference though is that in a criminal investigation the ends are thought to justify the means. Several states including Alabama, Alaska, Florida, Iowa, Virginia, and Wisconsin all have modified Rule 8.4 to create a prosecutorial exception. In these instances, it is ethically acceptable for an attorney to supervise an undercover operation. Outside of criminal investigations however, misrepresentation only seems excusable to prove civil rights violations and to investigate intellectual property infringement where the agent was merely observing normal business operations of the target.
Ultimately, as of yet, there is no hard answer to whether a lawyer may make friend requests or have his agents do so. It lies on the fringe of many of the rules. Generally, the account from which the request is sent must be valid and truthful. Further, the greater the public access to the profile on which the information is contained the greater chances that the behavior will be deemed ethical. Greater public access makes the behavior of “friend-ing” more like observing someone in their ordinary course of business. For instance, Facebook may be joined by any member of the public and is thus more likely acceptable. If the networking website is typically reserved for certain groups, the requesting individual, attorney or agent, had better be properly includable in that group to avoid misrepresentation. Be sure to check your local rules to ensure compliance with ethical standards of your jurisdiction.
Finally, and perhaps your best option, is that there is little to prevent a client from accessing others accounts. In other words, clients can friend individuals in an effort to conduct an investigation and then pass that information onto their attorney. An attorney can even passively use their client’s login credentials to access information that the client would ordinarily have access to. An attorney cannot direct their client to provide messages directly to opposing parties.
A. Judge Disqualified from Divorce for Trying to Friend a Party on Facebook
A Florida divorce case is getting quite a bit of attention. According to an opinion by the Fifth Circuit Court of Appeals in Florida, the judge in this case, Florida Judge Linda D. Schoonover, sent a friend request to one of the parties, Sandra Chace. Upon advice of counsel, Chace did not accept the friend request.
The attorney for Chace later alleged that when she did not accept Judge Schoonover’s friend request, the judge retaliated by giving her an unequal portion of the marital debt, plus gave her husband, Robert Loisel Jr., a larger alimony award.
The Court of Appeals decision, Case No. 5d13-4449, overturned the prior order that found that the judge could hear the case. In other words, when the attorney for Chace asked that Judge Schoonover be disqualified from the case, the judge refused to do so.
The Court of Appeals decision found that: “The ‘friend’ request placed the litigant between the proverbial rock and a hard place: either engage in improper ex parte communications with the judge presiding over the case, or risk offending the judge by not accepting the ‘friend’ request.” Therefore, the judge was ultimately disqualified from hearing the case on appeal.
Did the rebuffed friend request on Facebook really lead to a bad result for Chace in this case? No outside observer wants to believe this could be possible. However, the appearance alone was enough for the judge to be disqualified.
Obviously, this is just a Florida decision. But the obvious implication of this case is that parties would be wise not to try and friend a judge assigned to hear their case on a social network site and vice versa. Otherwise, the appearance of impropriety could become a real issue.
B. Ethical Ways for Attorneys to Use Facebook
First and foremost, an attorney should only “friend” friends. The default Facebook setting is “public” and this must be changed, otherwise everyone can see your posts and “check-ins.” Attorneys can access the “public” information if the setting is not changed. The temptation of lawyers to “friend” the opposing party, judge, or juror to gain an advantage might exist. This is prohibited communication.
If you believe there is needed information on Facebook it is necessary to go through normal discovery for it. New York City Bar Association Committee on Professional Ethics has gone so far as to issue an ethics opinion that concludes a “communication” includes any instance in which there is an effect on the recipient, such as when a juror learns that the lawyer tried viewing the juror’s Facebook page or when a juror later sends a “friend” request to attorney.
An attorney should also not ask others to do what they cannot do themselves. You cannot have someone else or create a fake/misleading account to “friend” an opposing party, judge, or juror. This is professional misconduct under Model Rule 8.4.
It is also important to keep confidential information confidential. An attorney should not post confidential information on their clients on Facebook. An attorney representing a client in mediation posted photos on Facebook that published publicly confidential information from the mediation session between his client and the company. Attorneys can also be liable for the Facebook posts of the paralegals, secretaries and other staff. This is why it is also important to have a social media policy for the law firm to limit the attorney’s exposure.
IV. How to Authenticate the Data
Issues and laws regarding family law are generally state-specific. Still, Federal Rules of Evidence are often mirrored or closely mirrored when states enact such statutes. In that vein, we will look to the Federal Rules of Evidence in determining which objections to the entry of ESI into evidence that you should expect.
Your first hurdle will be to pass any objections to relevance. Under Fed. R. Evid. 401, evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence: and the fact is of consequence in determining the action.
In Farris v. Farris, the trial court judge did not see the relevance of Husband’s attempts to enter Facebook pictures as evidence. He was attempting to enter pictures of marital property Wife sold at a garage sale after they had separated to prove a list of marital assets he wanted were missing. The judge did not see the relevance and dismissed the postings. The Appellate Court reversed and remanded the decisions of the Trial Court Judge.
A common objection to social media evidence is found under Fed. R. Evid. 901 that the material is not authentic. In that case you can look to Fed. R. Evid. 901(b)(1), authentication through the testimony of a witness with knowledge that the evidence is what it is claimed to be. Facebook evidence can be authenticated through the testimony of the author or even by a recipient or someone with personal knowledge of the evidence or 901(b)(4) permits authentication using circumstantial evidence, in conjunction with the appearance, contents, substance, internal patterns, or other distinctive characteristics.
Essentially, a witness testifies that a Facebook message or post originated from the purported owner of the Facebook account. Most courts will find this to be sufficient. The courts are mainly concerned with the ability for anyone to create an account and profile posing as someone they’re not.
Situations like where all facts surrounding a correspondence are disputed, have led to alternative methods of authenticating ESI evidence. One of these approaches has been to take judicial notice of other commonly known characteristics of computers and certain websites. Check local authority as some courts interpret authentication requirements tougher than others and some will simply not accept it if another more traditional form is readily available.
Most recently, in Campbell v. State, the court upheld the admission of Facebook messages as being authenticated, in a domestic assault case. The court asserted that Facebook present authentication concerns that are twofold. “First, because anyone can establish a fictitious profile under any name, the person viewing the profile has no way of knowing whether the profile is legitimate, See, Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012). Second, because a person may gain access to another person’s account by obtaining the user’s name and password, the person viewing communication on or from an account profile cannot be certain that the author is in fact the profile owner.
The court in Tienda v. State held that the appropriate method for authenticating electronic evidence will often depend on the nature of the evidence. In Campbell, the court held that the Facebook messages provide circumstantial evidence supporting that the boyfriend assaulted his girlfriend, therefore supporting the lower court’s ruling.
To summarize, there are several methods of authentication for social media evidence. The most obvious is to ask the owner/creator of the social media profile if they added the questioned content under Fed. R. Evid. 901(b)(1). Second, you can always formulate requests for admission with a printout of the desired posts attached. Third, you can bring in computer or social media experts to testify, as was done in Clevenstine under 901(b)(3) or maybe even 901(b)(9). Some have also used Fed. R. Evid. 901(b)(4) Distinctive Circumstances or Characteristics. Finally, you can use conditional relevancy under Fed. R. Evid. 104(a) and (b). Until there is a commonly accepted method of authenticating social media evidence, the practitioner should be prepared to meet the most exacting standards.
A. Can Print-Outs of Messages be Admitted? In What Form to Submit the Data
If your ESI comes from an entity such as Google, Facebook, or some variation thereof, you will either need a business records affidavit or a representative to testify as the authenticity of the document. Be prepared to combat the best evidence rule if there is no business records affidavit available for non-photographic information.
Authentication of ESI typically involves two concerns. The first, and often the biggest concern for the court, is the identity of the alleged declarant. Also though, one must show that the proffered evidence of the alleged communication is an accurate representation of what was posted. In the 1960’s courts were somewhat skeptical of computer printouts. Indeed, 1981 ALR suggested that when introducing computerized business records the foundation should include: (1) the reliability of the computer equipment used to keep the records and produce the printout; (2) the manner in which the basic data was initially entered into the computerized record-keeping system; (3) the entrance of the data in the regular course of business; (4) the entrance of the data within a reasonable time after the events recorded by persons having personal knowledge of the events; (5) the measures taken to insure the accuracy of the data as entered; (6) the method of storing the data and the precautions taken to prevent its loss while in storage; (7) the reliability of the computer programs used to process the data; (8) the measures taken to verify the accuracy of the programs; and (9) the time and mode of preparation of the printout.
Recently, however, courts have not had great difficulty in accepting that a print out or screen shot is an accurate representation of various online communications. For example, in United States v. Catrabran, the defendant contended that the computer printouts used against him were inaccurate, and he was able to show inaccuracies in the data. Despite this, the court concluded the discrepancies merely went to the weight of the evidence. Indeed, one court has even stated that computer printouts “have a prima facie aura of reliability.” Increasingly, the only bar to the admission of ESI is finding the applicable hearsay exception.
In J.T. v. Anbari, a Missouri case, a party introduced into evidence a print out of posts a juror had made during a jury trial. Although the juror did nothing in violation of the trial court’s order, this case shows the use of printouts of social media posts in Missouri.
Printouts typically contain the same identifiable information that is on the page itself. The names may incorporate the target’s name, the profile picture may be unique to the sender, and the conversation may detail characteristics unique to the defendant. Typically, having a witness testify as to whether the printout is a fair and accurate depiction of the email, highlighting various identifiable characteristics is enough for admission.
Printouts of social media have been a little bit tougher for courts to handle. Similar to online chat rooms, individuals create a user id under a pseudonym or nickname. This, particularly in the realm of social media, has created authentication issues. However, most of these again revolve around the identity of the sender, not the accuracy of a computer printout or screen shot. Do not forget that the opposing party may even be willing to stipulate to the authenticity of the social media and the printouts.
In LaLonde v. LaLonde, the Court of Appeals of Kentucky considered pictures posted on Facebook when deciding a child custody case. The husband sought to introduce photos from Facebook, to show his wife’s alcoholism. The wife argued that the photographs could not be authenticated “because Facebook allows anyone to post pictures and then ‘tag’ or identify the people in the pictures.” However, the court reasoned that “there is nothing within the law that requires her permission when someone takes a picture and posts it on a Facebook page. There is nothing that requires her permission when she was ‘tagged’ or identified as a person in those pictures.” Accordingly, the wife’s testimony that she was the person depicted in the photographs and that the photographs accurately reflected that she was drinking alcohol, was sufficient to meet the standard of authentication.
Ultimately, social media evidence, electronic evidence, and all forms of evidence are subject to the possibility of alteration. The use of computer printouts for ESI has largely become widely accepted and your greatest concern should be proving authorship of any alleged communication.
V. Latest Court Opinions
Quite often, Facebook evidence and electronic evidence in general is the icing on the cake in divorce litigation. For instance, in Atkinson v. Atkinson, Mother sought to rebut Daughter’s emancipation by invoking the exception for diagnosed health problems citing Daughter’s alleged depression. To disprove the claim, Father offered social media evidence of daughter drinking and partying at college. While the trial court excluded the evidence as irrelevant, Father was allowed to make an offer of proof depicting Daughter’s exploits.
In Martinelli v. Mitchell, social media evidence on Facebook was admitted in an order of protection proceeding. In that case, Martinelli presented evidence to the trial court regarding “text messages, phone calls, and Facebook” communication that was civil at first, but escalated to “name calling, insults, threatening to spit in my face if she ever saw me.” On appeal, the trial court’s judgment granting the order of protection was affirmed.
In Harris v. Harris, the court heard evidence on the Father’s Facebook posts in his divorce case. He had posted violent and threatening messages about mother on Facebook while the action was pending. Father had a history of violence with mother and child. Mother was prevented visitation by father and refused any information about their child for one entire year. The father also traveled a lot so his girlfriend would watch the child. The court also had evidence of the girlfriend “liking” the father’s violent posts on Facebook.
The friends and social contacts an individual has can also become a ripe issue. In State v. Hill, a criminal defendant convicted of rape, sodomy and child molestation, sought a new trial based on the fact the mother of the victim was Facebook friends with one of the jurors. Ultimately, the conviction was affirmed on appeal because the juror testified that he did not use his Facebook often and his interaction with mother was extremely limited. However, who an individual has social media contact with still can be a relevant issue to watch.
There are numerous other cases outside of Missouri that are worth examining as well. For instance, in In re Marriage of Bates, the court cited an email from the wife to the husband saying, “You will never feel so much pain when I’m done with you… I’m going to embarrass [sic] you make the kids hate you.” This supported an evaluator’s finding of alienation and the court upheld an award of sole legal custody to the father. For the purposes of awarding sole physical custody, mother’s posts on Facebook stating that the children “have a really bad father” were relevant as oldest child could clearly access Facebook. At trial, the wife claimed the emails were influenced by her medications and stress; and on appeal, the court rejected her subsequent assertions that the emails had been altered.
Social media content can be helpful in unexpected ways, like proving the size of a business. In Safdar v. AFW, Inc., the plaintiff filed suit against former employer to recover unpaid overtime wages under the Fair Labor and Standards Act. The cause was submitted on affidavit, and plaintiff used print outs from defendant’s Facebook page to corroborate his story regarding the size of defendant’s business. The defendant’s Facebook page listed nine stores, the same number cited in the plaintiff’s affidavit, whereas the defendant had claimed just two stores in his own affidavit.
Social media evidence can also prove to be the tipping point even when alone it is insufficient for the judge to rule in your favor. In Leenhouts v. Leenhouts, a wife placed a motion for default on husband’s desk in the marital home. Husband, several days later, placed messages on Facebook to the tune of “you thought you had me” followed by several expletives. While the court was hesitant to use the post as proof of service, husband’s testimony, that he could not recall who his Facebook post was directed at, damaged his credibility to extent that the court believed he had received service.
Recently, in the case Baidoo v. Blood-Dzraku, a New York court deemed Facebook service an acceptable method of notice in divorce cases. When the address is unknown and it can be proven that the defendant regularly checks Facebook, there is no reason why it could not be utilized for service. The concerns for use of Facebook for service is that it is possible that the account the service is sent too is not the correct account. Also, if the defendant does not check Facebook regularly they may not see it on time. In Baidoo the party was able to overcome these concerns by submitting Facebook evidence of the defendant’s Facebook activity and receipt of notice. There is still a split among courts but according to the court, the “next frontier of service is Facebook.”
In Crispin v. Christian Audigier, Inc., the court applied the Electronic Stored Communications Act to Facebook in quashing the portion of a subpoena that applied to communications in parts of the profile the user had selected as private. The court held that general postings viewable to the public on Twitter or Facebook were discoverable, but private messages where the website was acting as an ECS were not.
The court in Ledbetter v. Wal-Mart Stores, Inc., refused to quash Wal-Mart’s subpoenas aimed at the plaintiff’s social media profiles. The subpoenas sought all communications, including private blog entries, but in this personal injury suit the court concluded the subpoenas were “reasonably calculated to lead to the discovery of admissible evidence as is relevant to the issues in this case.”
Highlighting the ever-changing view of courts on social media evidence, Romano v. Steelcase, which allowed the discovery of an entire Facebook profile was recently disagreed with by the Federal Eastern District of in New York, Giacchetto v. Patchogue-Medford Union Free School District. In Giacchetto, the federal judge examining claims both under federal and state law held that only the social media postings, which referenced events alleged in the teacher’s complaint, were relevant and discoverable.
Most courts thus far seem to settle the issue of discoverability on relevance, although the courts after Crispin may consider protection under the SCA. Authentication often rests on the ability to show authorship, although some courts are more lenient only requiring an applicable exception to hearsay.
VI. Social Media When Divorcing
If you are utilizing social networking mediums, you may try working with your ex-spouse to formulate an agreement on the type of content shared regarding your former marriage. What is off-limits? Can your kids’ pictures be on Facebook? These questions may seem trivial; however, with the proliferation of technology, such issues are becoming more relevant.
Legal experts say that technology can actually be useful within the divorce process. It is a way to share facts and manage schedules in a very efficient way. For example, messaging may help facilitate and filter communication, creating a lower risk of impulsive comments.
It may be hard to strike a balance between cooperative technology use and hostile conduct. Divorce is an emotional process. If your fuse goes off, you may end up saying something compromising not only to your spouse, but also to the entire world. Social media platforms create a record of communication, and this can come back to haunt you. One Facebook post could generate irreversible damage and even lead to supervised visitation.
A. Potential Value of Shutting Down Social Media Accounts
For these reasons, many family law attorneys recommend that clients shut down their social media profiles when they begin the process. Otherwise, evidence, such as questionable pictures, could be used as ammo in court proceedings. On the other hand, some uses of technology are completely unavoidable as our social interactions become more technologically integrated. If you must stay connected, think before you transmit something online. Also, ensure that your online privacy settings are heightened. For example, consider who can view information posted.
It may help discuss your online presence with a legal professional. Divorce is not easy, but it can become worse if your issues or private matters are publicized on a large scale. An experienced family law attorney can help you understand what information is worth protecting as you work through the issues in the divorce process.
B. Protect Yourself
It is often recommended that anyone going through a divorce stay off social media sites. If the urge is too great, then make sure your privacy settings are set appropriately. In particular, people may have granted access to their page to friends or “friends of friends” who may be more aligned with the other spouse.
Individuals going through a contested divorce should also make sure none of their postings or pictures are contrary to any testimony they plan to give. Marlene Eskind Moses, President of the AAML explains. “Going through a divorce always results in heightened levels of personal scrutiny. If you publicly post any contradictions to previously made statements and promises, an estranged spouse will certainly be one of the first people to notice and make use of that evidence.”
If you are contemplating divorce contact an experienced family law attorney. A lawyer can advise you about the use of the social media, including how to protect yourself from such evidence being used against you.
Chumley, Cheryl K. Facebook Cited in a third of all divorce cases: ‘ It’s like having a massive public noticeboard.’ The Washington Times, January 21, 2015.
Here’s How Many People Are on Facebook, Instagram, Twitter, and Other Social Big Social Networks, Adweek: Social Times (April 4 th, 2016)(last visited Jun. 22, 2016), http://www.adweek.com/socialtimes/heres-how-many-people-are-on-facebook-instagram-twitter-other-big-social-networks/637205.
Italie, Leanne. “Facebook is Divorce Lawyers’ New Best Friend.” NBCNEWS.com. NBC News, 28 June 2010. Web.
In re Subpoena Duces Tecum to AOL, LLC, 550 F. Supp. 2d 606, 611-12 (E.D. Va. 2008) .
Crispin v. Christian Audigier, 717 F. Supp. 2d 965 (C.D. Cal. 2010) (the court held that general postings viewable to the public on Twitter or Facebook were discoverable, but private messages where the website was acting as an Electronic Communications Service (hereinafter referred to as “ECS”) were not).
Phila. Bar Ass’n Prof’l Guidance Comm., Op. 2009-02 (2009)
N.Y. City Bar Ass’n Comm. On Prof’l & Judicial Ethics, Formal Op. 2010-2 (2010).
San Diego Bar Ass’n on Legal Ethics, Op. 2011-2 (2011).
Chace v. Loisel, 170 So. 3d 802 (Fla. Dist. Ct. App. 2014).
ABA Journal, “Judge removed from divorce case after sending one party a Facebook friend request,” Stephanie Francis Ward, January 29, 2014; and Strategist FindLaw Business Blog, “Judge DQ’d for Ex Parte Facebook ‘Friending’ of Litigant,” William Peacock, January 28, 2014.
Kelly Anthony and Andrew Jones. To “Friend” or “Unfriend?” 3 Simple Ways for Attorneys to Ethically Use Facebook. Attorneylending.com/facebook-ethics/
Hanson, Joyce, Facebook Post Earns Atty a DQ Bid in Cruise Injury Suit, Law 360 (May 31, 2016) Retrieved June 23, 2016. http://www.law360.com/articles/801761/facebook-post-earns-a-dq-bid-in-cruise-injury-suit.
Farris v. Farris, No. SD.33837, 2016 WL 1573186 (Mo. App. S.D. 2016).
Campbell v. State, 382 S.W.3d 545, 550 (Tex. App. 2012).
Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012).
United States v. Catrabran, 836 F.2d 453 (9th Cir. 1988).
Canadyne-Georgia Corp. v. Bank of America, N.A., 174 F. Supp. 2d 1337, 1343 (M.D. Ga. 2001).
J.T. ex rel. Taylor v. Anbari, 442 S.W.3d 49, 57 (Mo. Ct. App. 2014), reh’g and/or transfer denied (Feb. 13, 2014), transfer denied (Apr. 29, 2014).
LaLonde v. LaLonde, No. 2009-CA-002279-MR, 2011 WL 832465 (Ky. Ct. App. Feb. 25, 2011).
Atkinson v. Atkinson, 423 S.W.3d 322 (Mo. App. Ed. 2014).
Martinelli v. Mitchell, 386 S.W.3d 148 (Mo. App. S.D. 2012).
Harris v. Harris (In re Marriage of Harris), 446 S.W.3d 320 (Mo. App. 2014).
State v. Hill, No. ED98317 (Mo. App. Ed. 2013).
In re Marriage of Bates, 817 N.W.2d 32 (Iowa Ct. App. 2012).
Safdar v. AFW, Inc., 279 F.R.D. 426, 430 n. 41 (S.D. Tex. 2012).
Leenhouts v. Leenhouts, No. M2012-01844-COA-R3-CV, 2013 WL 3968159, at *2-*4 (Tenn. Ct. App. July 31, 2013).
Baidoo v. Blood-Dzraku, 48 Misc. 3d 309, 310, 5 N.Y.S.3d 709, 711 (N.Y. Sup. Ct. 2015).
Crispin v. Christian Audigier, 717 F. Supp. 2d 965 (C.D. Cal. 2010).
Ledbetter v. Wal-Mart Stores, Inc., No. 06-cv-01958-WYD-MJW, 2009 WL 1067018, at *1 (D. Colo. Apr. 21, 2009).
Romano v. Steelcase, 30 Misc. 3d 426, 907 N.Y.S.2d 650 (Sup. Ct. 2010).
Giacchetto v. Patchogue-Medford Union Free School District, No. CV11-6323, 2013 WL 2897054, (E.D. N.Y. May 6, 2013).
