Family law often delves into some of the most intimate aspects of individuals’ lives. From child care, to religious beliefs, to financial information, each and every aspect of a person’s daily life may not only surface, but be the very subject of litigation. Couple this fact with the proliferation of social media and family law practitioners have a duty to understand what role social media can and should play in litigation.
A Global Audience
Facebook is a Fortune 250 company with over 1 billion active, daily users. Through its network, members disseminate everything from innocuous birthday wishes to polemicized political outcries to a global audience. While users often treat such messages as monologues sharing whatever stirred their passion that instant, as with any digital fingerprint, the ultimate scope of the audience is unknown and the content is permanent.
Social Media as a Sword & a Shield
Given the prevalence of social media in nearly everyone’s lives, family law practitioners would be remiss if they failed to familiarize themselves and their clients with the many ways in which a simple post or tweet can influence issues of custody and maintenance: posts featuring freely-shared, lavish purchases are certainly probative of an ability to pay or hidden assets just as time and date stamped images may demonstrate violations of custody arrangements. Counsel should be cognizant of not only how to advise their clients on their own use of social media, but also how to root out information as part of their own investigations.
Social media postings can often prove to be a veritable treasure trove of information that can often unintentionally corroborate dates, times, locations and activities with far-reaching implications. For example, a recent Illinois Appellate opinion, In re Marriage of Miller, 2015 IL App (2d) 140530, addressed the role of a series of Facebook posts in determining whether a maintenance award should have been terminated or modified. In building his case, the ex-husband amassed and properly introduced into evidence a lengthy series of Facebook posts from his ex-wife’s account, which detailed her new relationship, including where and with whom she had spent recent vacations and holidays. Interestingly, the Miller court held that the Facebook evidence was properly admitted and relevant for the six-factor analysis used to assess whether a de facto marriage warrants the termination of maintenance payments.
In order to ensure the continued availability of possibly probative information, family law practitioners should consider issuing litigation hold letters, which specifically address the party’s online activities, if litigation is imminent. Doing so lays the groundwork for later claims of spoliation if necessary.
Given the detrimental effects that errant comments and untoward photographs can have on litigation, clients must be aware of their own use of social media, including what types of activities and the amount of information regarding their children that they elect to share. Most importantly, clients should be reminded that they should not post anything online – no matter how private they believe it to be – that they would not tell a judge or their children. As a corollary to the suggested use of litigation hold letters, family law practitioners should also counsel their clients on the need to preserve their own online presence and specifically, advise against the deletion of any possibly harmful materials. Failure to timely do so could result in successful spoliation claims down the road.
A Simple Google Search Will Often Do
The Stored Communications Act, 18 U.S.C. §§2701-2712 (2012), largely immunizes social media companies from disclosing materials in response to a subpoena without the user’s consent. However, such materials are ripe for discovery through a request for production served on the opposing party. Illinois courts have repeatedly held that such information is both relevant and admissible. Given the degree to which many people freely share the details of their lives online, a simple Google search for relevant materials posted may often suffice. Practitioners, however, should guard against an overly zealous inclination to seek out and “friend” or actively engage potential witnesses or parties to litigation, as several bar associations have warned against just such conduct as unethical.
Having obtained the relevant social media content, you need to put it to good use. Typically, courts treat social media content as any other form of evidence requiring testimony of foundation and authenticity. Often, this line of questioning mirrors that of introducing photographs as the typical medium brought into the courtroom is a printout of a screen shot taken of the messages. That is, the witness will need to testify to how and when the website was accessed and that the screen shot accurately represents the website as the witness encountered it.
Further testimony is also needed to establish the authorship of any content as part of the authenticity requirement. Counsel can accomplish this either through admissions from the author or circumstantial evidence linking the content at issue with evidence that has already been authenticated and admitted. For instance, other evidence may provide details such as birth dates, nicknames or other unique identifiers that can establish authorship without a direct admission. The ability to not only find, but then, successfully employ this type of information at trial is a significant advantage for both counsel and their clients.
These are just a few issues raised by social media in the course of family law litigation. It is best to consult with an experienced attorney.