Working
for a family law firm exposes me frequently to the pitfalls, in a divorce, of
the internet, especially social media such as FACEBOOK. The December 2012 issue of Bench & Bar,
the official publication of the Minnesota Bar Association, www.mnbar.com
carried an interesting article (Social Media Discovery http://mnbenchbar.com/ ) by Heidi M. Silton and Courtney Blanchard, on
the topic. While written for attorneys, the article is interesting to a layman
first of all for showing the attention paid by lawyers to the topic, and,
second for what it contains.
FACEBOOK, SOCIAL MEDIA, AND DISCOVERY
The
article focuses on discovery. Briefly
stated, discovery is the pre-trial phase in a lawsuit in which each party can
obtain evidence from the opposing party by means including requests for answers
to interrogatories, requests for production of documents, requests for
admissions and depositions, and subpoenas.
Sometimes, discovery is done formally through documents captioned and
titled “Interrogatories,” “Requests to Produce Documents,” “Requests for
Admissions,” and “Subpoena”. These days,
it is far more often for discovery to be done informally by letters between
attorneys.
Silton
and Blanchard write, “Courts have established that FACEBOOK and social media
information, even if guarded under privacy settings, is discoverable if it is
shown to be material and relevant to the claims or Defenses.” That means that you may be required to
provide access to your social media accounts to your spouse, the other parent
or his/her attorney. This might be by
accepting a friend request from the other Side, or more preferably, you may be
permitted to provide paper printouts showing your social media activity. However… if you think you will be able to
save yourself from having embarrassing, private, or incriminating appear in
your divorce case, think again!
SPOLIATION, SOCIAL MEDIA, AND LEGAL
DISCOVERY
Silton
and Blanchard discuss spoliation, the legal doctrine which permits courts to
issue sanctions if you destroy evidence.
Deleting posts from your account, whether those posts are or might be
subject to discovery; could be spoliation, and the penalties of spoliation can
be quite severe. Yes, you can lose
custody of your children if you destroy evidence! Jennifer Moore, of Family Law
Attorney Minnesota, PA, says, “Many of my clients already have
access to the other side’s social media accounts either through a friend or
relative, an assumed name, or in their own name. There is a good chance that
you will be caught if you delete comments.”
Moore
continued, “Parties to litigation should be cautious of what they post and what
they delete. Additionally, watch those
friend requests! You may be unwittingly
accepting a friend request from the other side to your litigation.” Moore notes that although the issues are
unsettled, it is likely that an attorney who sends you a friend request without
your approval or a Court Order would be subject to discipline.
“Attorneys
are not permitted to communicate with the opposing side if they have an
attorney. A friend request is probably
exactly the type of communication that is prohibited under the Rules of
Professional Responsibility.
Interesting
issue! What strikes me is that this is
not settled law. Like everything in
life, you take your chances when you go to Court. Furthermore, while it’s oversimplifying to
declare, “once on the internet nothing is ever deleted:” it is true that, once
on the internet, you can be subject to sanctions if you don’t disclose it
during discovery.
About Author
Jennifer graduated from the University of
Minnesota cum laude with a bachelor’s degree in speech communications. In 2006,
Jennifer achieved her life’s dream; owning her own family Law Attorney Minnesota
practice. She practices every day as Divorce lawyers MN
with the intention of representing her
clients’ future.
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