A look at some evidentiary hurdles and legal challenges attorneys can face when submitting or being presented with evidence from social networking sites.
By Lynne Strober, Jennifer Presti, and Khizar A. Sheikh
The legal profession is utilizing social media to gather information about clients, potential clients, opposing parties, witnesses, jurors, and even judges.
Increasingly, social media information has also become valuable in family law cases. It can be used as a basis to assert claims of cohabitation, challenge custody, address alimony, etc. Often, after a client contacts a family law attorney, and even before meeting, attorneys can learn about a potential client, their spouse, and the businesses the potential client and/or spouse own through the Internet.
Cases in various states address the evidentiary hurdles attorneys face when submitting evidence from social networking sites, and also the legal challenges attorneys should consider when presented with objectionable or potentially fraudulent social media evidence from his/her adversary. Collectively, social media evidence seems to be admissible if there is proper authentication of the evidence. However, attorneys have the ability to challenge the admission of social media if there is doubt about the authenticity of the records being presented by the other party. Fed. R. Evid. 901(a). Note that the Third Circuit recently held that social media communications are self-authenticating as “business records.” See U.S. v. Browne, 834 F.3d 403 (3d Cir. 2016).
A glaring example of how social media can be used in custody matters is the case of Dexter v. Dexter, decided by the Court of Appeals of Ohio. 2007 – Ohio – 2568, ¶ 1, 2007 WL 1532084, at *1 (Ohio App. 11 Dist. 2007). The mother, “both in her testimony and through her writings in on-line blogs, stated that she practiced sado-masochism and was a pagan,” Id. at *6. The mother challenged the admissibility of this evidence. Ibid. See also J.N. v. D.R.M., No. CN07-01654, 2008 Del. Fam. Ct. LEXIS 62, at *17 (Del. Fam. Ct. Jan. 29, 2008) (relying heavily on photos posted on MySpace that highlighted a mother’s drinking habits in a decision to deny the mother sole custody). Dexter, supra at *6 (Ohio App. 11 Dist. 2007). With respect to the evidentiary hurdles, the mother admitted in court that she wrote the on-line blogs on her Myspace account and that those writings were open to the public to view. Dexter, supra at *1 (Ohio App. 11 Dist. 2007). Thus, the Court of Appeals of Ohio found that she could hardly claim an expectation of privacy regarding the writings. Id.
An August 17, 2016 decision by the Court of Appeals of Louisiana in Shaw v. Young held that the “husband’s repeated emails and text messages to his wife and his repeated postings on his social media account about her constituted cyber stalking, which qualified as domestic abuse and thus supported the issuance of a permanent Protective Order.” 199 So.3d 1180 (La. App. 4 Cir. 2016). In this case, the husband sent electronic messages to the wife and posted negative things about her online. Id. at 1187. The wife testified that her husband posted messages on Facebook about her immigration status and threatening to release private photographs of her to others, and sent messages to her friends saying “bad things” about her – messages that the friends then forwarded to her. Ibid. at 1188. The Court of Appeals found the messages, “whether they were emails, text messages, or even letters – constitute a ‘repeated pattern of verbal communications or nonverbal behavior without invitation’ that would cause a reasonable person to feel alarmed or to suffer emotional distress.” Shaw v. Young, 199 So.3d 1180, 1187.
The Louisiana statute specifically includes cyber stalking and a definition of electronic communications. Id. The Court further found that the Facebook pages are public and while Facebook users can restrict access, individuals that were not the husband’s friends were getting contacted, and he had not utilized any privacy settings. Ibid.
Social media evidence can be acquired both informally – by personal investigation – or more formally through the use of discovery. Many of the cases cited above relate to evidence that is publicly available. Generally, evidence that is publicly available may be gathered freely and used in any matter allowed by law or the Rules of Professional Conduct. See, e.g., Colorado Bar Association Ethics Committee Opinion 127.
Lynne Strober is the Co-Chair of the Family Law Department at Mandelbaum Salsburg, PC. Jennifer Presti is an associate in the Family Law Department and Litigation Department at the firm. Khizar A. Sheikh is an attorney. www.lawfirm.ms
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Family Lawyer Magazine
Spring 2019 Issue
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