Did you hear about the father who made a Facebook posting stating he was
“single with no children looking for a good time,” at the
same time he was in a legal battle for parenting time with his child?
Or how about the mother who was seeking custody of her child, but at the
same time posted negative and threatening comments about the child’s
father on Facebook posts—that were accessible to the child?
Or the parent who posted that she planned to stop using drugs only during
the pending custody litigation—and planned to go back to using as
soon as the proceedings were completed?
Social media is part of the fabric of our culture today. All the world
can now see the most intimate and private details of our lives (and thoughts)
posted on any number of social media sites. This means that courts, too,
will want to see what litigants have posted. Social media postings now
provide a window into the reality of a litigant’s motives and intentions—a
window that had previously been closed to the prying eyes of courts, lawyers
The first thought before getting involved in a legal dispute, may be just
to delete those embarrassing or harmful posts. But beware: deletion could
lose your case. The general rule of law requires that a party to a legal
preserve evidence that is “relevant” to the dispute—even evidence that
is harmful to the party’s side of the case. Courts now apply this
rule to social media posts in family law cases: courts will order the
preservation and disclosure of the entirety of a party’s social
media accounts to the other side and to the court. If those posts have
been deleted, and not preserved for disclosure to the court, the court
will presume that the posts were harmful to the litigant’s position
in the court and will rule on the case accordingly—that means often
ruling against the party who deleted the social media posts and assessing
severe money sanctions against that party (and sometimes his attorney).
Experienced family law attorneys, such as Clawson & Clawson LLP, immediately
advise all new clients to avoid tampering in any way with their social
media accounts. However, simply deleting social media posts
before engaging an attorney will not excuse the penalties for deleting the material.
By consulting with experienced family law attorneys, new clients will
learn how to preserve the social media postings before those inappropriate
postings are taken down. Although features constantly change on social
media, the page interface may offer options to preserve the information
to an external device before it is deleted. For instance, Facebook may
still have the option to “Download Your Info,” which allows
a Facebook user to download a zip file containing information, posts,
messages and photos and then delete that material. Twitter and other social
media pages may have similar options that should be identified and used
before any posts are removed from the party’s social media pages.
Search for vendors who will, for a price, preserve the pages in the Cloud
or on other devices before they are deleted from social media.
Once the legal proceedings begin in a contested dissolution or custody
matter, each party will be required to list all social media accounts
and to provide all posts on those accounts that relate in any way to the
issues in the case. Although the federal Stored Communications Act (18
USC 2701) protects information on social media from random disclosure,
the social media company will be required to disclose all information
if presented with a release from the account owner authorizing the disclosure
and a court issued subpoena ordering the disclosure be made. If a party
does not authorize the disclosure, the court will then take appropriate
action to direct the party to disclose the material or suffer the consequences
of refusing to disclose.
In using social media accounts we sometimes forget that we are posting
our most private thoughts for examination and review to the entire world
(regardless of the “privacy” settings). Especially in matters
of marital discord or parenting disputes, the best advice is to be old-fashioned
and keep those thoughts to ourselves. Nothing is “private”
on the internet.