In the legal world it’s called Electronic Discovery (E-Discovery), in the “real world” it’s called spying or even “cyber-stalking” but regardless of the label, your cyber-presence can be used against you in court. There are numerous examples of Facebook, text messages, e-mail, etc. being used as evidence of adultery, poor parenting, to refute an alibi, to demonstrate capacity to work, to prove substance abuse, and countless other things.
It would seem common sense that you shouldn’t change your status to “single” or “in an open relationship” if you’re married (and in South Carolina, you’re married until you’re divorced – PERIOD!) but common sense seems to be lost in cyberspace. It’s important to note each of the antidotal examples below involves everyday people involved in everyday litigation. The use of e-discovery is now common-place in the courts – The Wall Street Journal reported in May 2012, “[m]ore than a third of divorce filings last year contained the word Facebook. . . .” Thus, be warned: Facebook, text messages, e-mail, etc. are all fair game!
1. Deleted is not deleted and there’s no such thing as an anonymous post on the internet, no matter hows smart you think you are – forensic examiners WILL be able to find it. Last year, I was involved in a family court case, where the parties both alleged the other had made death threats and abused the child. The judge ordered all parties to turn over their computers, cell phones, and tablets to the South Carolina Law Enforcement Division (SLED) to determine the nature and content of e-mails and text messages sent between the parties. The judge also assured the parties they would soon have a lot more to worry about than their family court case – if any of the allegations were true, appropriate charges would be brought AND if none of the allegations were true, appropriate charges would also be brought for providing false information. In another case, while on the stand testifying about his Facebook posts, a Defendant said “I’ve been meaning to delete that account” – the judge didn’t appear amused and it certainly wouldn’t have helped his case (mind you, I already had printed copies of his page).
2. If you claim to be injured (physically, emotionally, or financially) your Facebook page better not show otherwise. In February 2013, LexisNexis reported on a sexual harassment case brought by the Equal Employment Opportunity Commission (EEOC) against the Original HoneyBaked Ham Company of Georgia, Inc., the Defendant sought information from the women’s Facebook pages as evidence of their lack of credibility and to demonstrate their actual emotional and financial state at the time they claimed to be distressed. The Judge held “The fact that [the information] exists in cyberspace on an electronic devise is a logistical and, perhaps, financial problem, but not a circumstance that removes the information from accessibility by a party opponent in litigation” and ordered the women’s Facebook accounts be examined by a forensic expert (paid for by the parties). Examples of the evidence sought included a photo of one of the women wearing a t-shirt imprinted with an offensive term to describe women, comments as to the women’s financial expectations from the suit, comments about unrelated traumatic events effecting their emotional state at the same time, and sexually explicit communication with the other women. EEOC v. The Original HoneyBaked Ham Company of Georgia, No. 11-cv-02560-MSK-MEH (D. Colo. Nov. 7, 2012).
3. The past is not the past. You should not post anything on Facebook (or say anything in a text message, e-mail, etc) that you don’t want broadcast from the highest mountain top now or ever. A few years ago, I observed a civil court trial where the Plaintiff alleged he was no longer able to pursue his career as a musician because he allegedly suffered from a deviated septum resulting from a car accident. At trial, the Defendant presented the Plaintiff’s own Facebook updates as evidence. His posts showed a long history of sinus infections, nosebleeds, and medical treatment for symptoms of a deviated septum. It definitely threw a wrench in the Plaintiff’s “but for” causation argument. The case settled at lunch that day.
4. Please do check in, and tagging everyone who’s with you is also helpful. Thanks, Opposing Counsel. I recently won a Family Court Rule to Show Cause in large part because the Defendant claimed he couldn’t afford to pay his obligations, all the while “checking in” at every stop on his four-city-tour of Florida. It also didn’t hurt that he tagged his new girlfriend with him.
5. Debit cards are equivalent to a personal diary. For heaven’s sake, have enough sense not to buy flowers or lingerie online if you’re not giving it to your wife.
6. Zip your lips (and your keyboard). As reported in the July/ August 2012 edition of the Young Lawyer, technology “has transformed communications between lawyers and their clients and poses unique problems for preserving attorney-client privilege, [and] the work product doctrine . . . .” It’s easy to inadvertently waive these privileges by disclosing confidential information to third parties. In one case, Lenz v. Universal Music Corp., No. 5:07-03783, 2010 U.S. Dist. LEXIS 125874 (N.D. Cal. Nov. 17, 2011), a Plaintiff was found to have waived his attorney-client privilege by sending e-mails to third parties and blogging about conversations with his attorney. Clients (and prospective clients) frequently get upset and even angry when their best friend, momma, daddy, or even their GF/BF is not permitted to sit in on meetings with their attorney. There’s many good reasons for this policy, not the least of which is protecting attorney-client privilege. Also, attorney’s should never, ever, communicate with a client regarding a case on Facebook or chat.
7. Nothing is Secret on the Web. Regardless of your privacy settings, password protection, or other means of securing your personal cyber world, it is always possible a judge will order you to turn it over, or even provide the opposing side your username and password. Another take home lesson is friends are friends forever. You can “unfriend” your spouse but your friends have friends who have friends . . . I’ve never encountered a case where despite many degrees of separation, we weren’t able to access the other sides Facebook page.
8. Keep your kids out of it! Do Not, I repeat, DO NOT, post pictures or videos of your children with your new partner, in front of a bar, or with you on a dating website while you’re going through a custody case. Also, keep in mind that if you post pictures of your new partner at an event and also post (separate) pictures of your children at the same event, it’s likely going to be easy to prove your children have been exposed to your paramour.
9. Just because you can doesn’t mean you should. In October 2012, a colleague, Benjamin Stevens, blogged about spying during divorce. Mr. Stevens cautioned potential problems include criminal charges for invasion of privacy or stalking, or even civil suites such as trespassing. He pointed to an example of a mother who was found guilty of violating the Federal Wiretap Act for placing a listening devise in her daughter’s teddy bear to record the girl’s father. The law is dynamic and as suggested by Mr. Stevens, “it’s best to avoid any such stealthy operations” until you’ve consulted with an attorney. Another colleague, Greg Foreman, also blogged in October 2012 about a South Carolina Supreme Court Case, Jennings v. Jennings, Opinion No. 27177 in which a husband sued his wife and her private investigator for invasion of privacy, conspiracy, and violations of the federal Stored Wire and Electronic Communications and Transactional Records Access Act (SCA), 18 U.S.C. § 2701. Although, the Court’s decision was complicated, the take home lesson was certainly, it’s a bad idea to hack your spouse’s e-mail account; instead you should consult an attorney and go through proper discovery to obtain any such evidence.