Social Media and Family law are a volatile mix. According to the American Academy of Matrimonial Lawyers (AAML), more than 80 percent of divorce attorneys have used social media posts in divorce court cases. In a prominent recent case, a judge in Connecticut ordered a husband and wife to exchange social media and dating site passwords as the best way to settle their acrimonious divorce. The husband’s divorce lawyer, Gary Traystman, told Forbes these ugly disputes have left him so unnerved he refuses to use a computer. “I see the information people can get from computers, in lawsuits and through hacking. They scare the hell out of me.”
The rest of the world probably doesn’t want to follow Mr. Traystman’s example, so it’s important that attorneys in family law learn to integrate smart social media planning into their litigation practice. Parties are frequently caught pursuing affairs on Facebook. Custody battles often revolve around Facebook photos of individuals consuming alcohol inappropriately.
Individuals or small businesses are frequently caught promoting services on Facebook that they claim do not exist. Many individuals lose out on disability insurance or even alimony for Facebook photos involving heavy lifting or other activity they supposedly could not perform.
And being Facebook “friends” with the wrong person can cause all sorts of unwanted trouble. Judges are just now beginning to learn to limit juror access to social media, as Facebook is creating several cases of juror misconduct from online comments about a trial.
Facebook evidence is now central to countless cases, but courts still struggle with how to integrate this content into existing evidentiary procedures. While Facebook evidence seems like an easy way to discovery smoking gun evidence, lawyers need to keep some sensible rules in mind.
Don’t Assume a Facebook Message is Authentic
Commonwealth v. Duncan Purdy (December 6, 2010) Courts have sensibly rules that just because a message comes from someone’s Facebook account is not enough to authenticate a message. In fact, courts rely on largely the same standards of authentication used in other digital communications, which demands forensically sound tools to capture and archive content.
Don’t Go Fishing
Muniz v. United Parcel Service, (N.D. Cal. January 28, 2011) In this negligence and gender discrimination suit, each party sought attorney’s fees from the other, including requests for postings on listservs and social media networks. While Facebook evidence seemed to offer a rich source of evidence, the court rejected the defendant’s request to be compensated for discovery from Facebook, judging the search to be irrelevant, overbroad, and imprecise.
Don’t Annoy the Court
Offenback v. L.M. Bowman, Inc., (M.D. Pa. June 22, 2011) Not annoying the court is always a good rule, but one many parties ignore in their zeal to obtain evidence. The defendant in this case was able to present photos of the plaintiff riding a motorcycle despite claims an accident had left him afraid of vehicles.
However, the court was clearly annoyed at having to conduct an initial review of the page, asking why was the Court “called upon to conduct an initial review of Plaintiff’s entire Facebook account to determine whether it contained potentially responsive, non-privileged information that should be produced as part of discovery in this case”?
Courts still struggle to define how Facebook evidence fits within the existing rule of evidence. In Patterson v. Turner Const. Co., (N.Y.S.2d 311 2011), the plaintiff in a personal injury suit tried to argue that his Facebook posts were not subject to discovery. In order to overcome the objection, the court ruled that Facebook posts were analogous to a personal diary. That’s obviously an imperfect analogy, but it’s how court rulings are being made.
Social media, and Facebook in particular, has revolutionized eDiscovery case law. (See this great infographic for more stats.) Courts are still struggling to integrate this new reality into rulings. But as with most areas of law, when in doubt about how to proceed, assume the same rules as have been applied to other new media apply to Facebook as well.