The only thing that does not change is change. Lawyers must modify and change the way they prepare for highly conflictual cases in these changing times. To do so, they need to understand and know the right questions to ask about social media.
By Judge Michele Lowrance and Family Lawyer, Pamela J. Hutul
According to the American Academy of Matrimonial Lawyers, more than 80 percent of divorce attorneys surveyed reported an exponential increase in the amount of evidence collected from social networking opportunities in the past five years. The purposes and consequences of searches of social media produce rich information which can be used by and against litigants on trial or in settlement negotiations. This article will review the where and what can be procured, how we as advocates can delve for treasure on the social media websites and in digital communications, as well as protect our clients from the pitfalls to which they may expose themselves in being modern in our new world.
First: what social media should be explored? Texts, emails, phone numbers, call histories, GPS and Internet search histories, and social media sites, like Facebook, Myspace and the dating services. Second: early in your case, ask that the opponent keep all Social Media sites intact during the case, and preserve all texts and emails, so that there is no loss of evidence.
Text messaging is the most common form of divorce evidence. More than 90 percent of America’s top divorce attorneys said they have seen a spike in the number of cases using evidence from text communications in the past three years, according to the American Academy of Matrimonial Lawyers (AAML).
Texts are the source of great embarrassment if one spouse keeps texts sent during times of anger or frustration, or when socially involved and not being mindful of their words. Likewise, texts sent to children or to friends and family members can show a mental state or disposition that contradicts the carefully constructed disposition that has been crafted to appear calm and neutral. Texts tend to be reflexive, people do not think about them, they exist in a context of immediacy and spontaneity. They provide a window that provides perhaps a reflection of someone’s real thoughts and intentions at times when they are not thinking like a litigant.
Texts can be printed. Clients can send you the entire chain of texts between spouses so attorneys can review them in toto to see if there is any gold in that mountain. We as advocates need to tell our clients that if they do not want a judge to see it, don’t write it down.
Also, either spouse can subpoena the text messages from all numbers by subpoenaing the records from the cell phone provider. The records are usually only kept for a specified amount of time, but often the most recent is the most useful, so do it quickly at the beginning of a case. If a spouse leaves his/her cell phone on the kitchen table, or in a public spot, unlocked, a spouse can review the entire record freely and copy the record. So tell your clients: be careful where you leave your phone. And stay alert for opportunities.
Cell phones offer other avenues to obtain interesting discovery. Look at a spouse’s cell phone bill: what are commonly called numbers that are unknown to the family? An inquiry by reverse checking those numbers may tell what other persons or businesses have captivated the time of the spouse when not involved in family affairs (www.freephonetracer.com, eHow.com, and reversemobile.com). This may provide an opportunity to use embarrassing information for marital indiscretions, obsessions or interests that can be useful in managing the case. How does the practitioner protect his client from getting into the trouble he is researching in the other spouse? Tell your client to use a disposable cell phone that cannot be traced to him (eg. do not charge the purchase to a credit card) for any calls that may later prove to demonstrate something he or she does not want to explain or that may damage his or her case.
There are also opportunities for a) tracking a spouse by activating a GPS service on his/her cell phone and b) recording conversations wherever the phone is. Although stalking is illegal in Illinois and the ramifications should be carefully examined before doing, your client’s can activate the tracker on his/her spouse’s cell phone if it is a family account, and can check to make sure his/her spouse has not done the same thing in turn. (Call your phone provider to ensure that locations services has not been enabled.) These GPS services can issue an alert whenever the person setting the program requests. And although also illegal in Illinois, there are programs that will voice active a recording whenever there is conversation where the phone is located. It may be difficult to determine how a spouse knew certain information, but it may be hard to prove that it was obtained from such an application activated on your client’s phone. Inform your client of the dangers of leaving their phone on the dinner or lunch table (or anywhere out in the open) when out of earshot of the other spouse, especially when divorce related or embarrassing matters are the subject of discussion.
The new applications for cell phones grows daily. This writer does not claim to be knowledgeable about those new and perhaps useful ones. Good management may be leaving your cell phone wherever there can be no embarrassing information revealed by its presence.
If your client has a new cell phone, he or she should beware: where is the old phone? It could be their nightmare transformed into a bug in a car, purse, or briefcase providing a road map of activities and conversations.
Computers and Email
Email is another minefield or goldmine, depending on whose emails are being used in the case. If one party has legal access to the other party’s email account, the transmissions sent by the address owner will be evidence admissible in Court. There are objections to emails received by the owner (hearsay and authentication), however they can be managed by subpoenas to the internet service providers for their records to demonstrate who owns the accounts from which the emails were sent. The information contained in the email is a constant source of information in a case: helpful or harmful to your client. He or she can best protect himself by not using a home computer for any confidential transmissions, or ones about which he/she may be vulnerable. Likewise, work computer records are susceptible to subpoena for those transmissions that are sent/received that are not work related.
To prepare a subpoena for a specific email account, you need to have the accounts holder’s personal details. If you do not have them, you can sometimes loook through fee-based online email tracing services. You can issue a subpoena directly to the email account’s service provider who will be obligated to provide all required information about the account. Be prepared to have a Court review the responses to email requests for relevancy.
The laws regarding email are a quagmire, and can be a sink hole if you violate federal or state laws or privacy expectations. Initial question: does your spouse have a password, if does the other spouse know it? If an account is password protected, the use of keyloggers and spyware is illegal without subpoena. And attorneys who know about illegal interception of electronic spying are also at risk (both for malpractice and personally). These cases are rarely prosecuted, but you do not want to expose you or your client to liability. That being said, it is very common for a spouse to find it irresistible to keep tabs on who has become the enemy’s email communications: again an often ripe and fruitful opportunity to see the private thoughts, ideas and indiscretions. Remember Petraeus.
If there is any doubt, have your client open a new account with new passwords, and keep the account and stored emails in a computer not used by the other spouse. Do not share the new account information with the other spouse and keep your secrets to yourself!
Lastly, remember, there are cookies on your computer which show each email whether you deleted it or not. Also the servers will have all erased and deleted emails, so know there is no hiding despite what you may think. You can never be certain of what is stored or archived, so if you do not want to see it in Court, do not write it.
How do you know if your computer is safe? How can you tell if your spouse has somehow triggered a program so he or she can copy every communication, web search, look at your dating service transmissions and the like? You can’t. The programs are so sophisticated, spyware so good, the devices to get into your information so subterranean, that not even experienced techies can find it. If you want to be sure: don’t use your computer for any purpose you do not want to haunt you later.
Social Media Websites
There should be a bible of dos and don’ts when going through a divorce or custody proceeding. The chapter on Social Media Websites is another portal every lawyer should walk their client through to protect their case and to explore hidden treasures about the spouse. Facebook, Myspace and similar sites were seemingly designed to be the divorce advocate’s dream in providing information that every litigant wants in preparing for war with the enemy. It tells us where the registrant has been, is going, with who, what they did when they arrived, how they behaved, what surprises were awaiting them, what they expected, and often even has photos from friends (and enemies!) exposing the worst (or best!) of times. Also, the dating websites: eHarmony, Match, JDate provide profiles and let the world see the world view of the participant claiming that he or she is the full time devoted parent or spouse.
How do you get it? Several courts have held that social media is discoverable for three main reasons; 1. It does not violate any privacy as there is no expectation of privacy 2. It can be relevant 3.It does not violate any privilege. Some courts have not allowed just a fishing expedition or requests that were overbroad. So ask the other litigant to produce his or her usernames and passwords, and to print the entire page from its inception including contacts, friends and any deletions ever made. As long as the request can be argued to appear reasonably calculated to lead to the discovery of admissible evidence such as hidden assets or information relevant to custody, a court should allow the request.
Also, an attorney or the client may “friend” the account holder. How does someone become her friend and gain access to that wall? Make a friend request. The Bar Association Ethics Committee has opined that an attorney may use their real name to send a friend request to the opposing party without disclosing the reason for making such a request. This follows for the attorney’s agent as well. Nevertheless, it is impermissible and improper for the attorney to assume a false identity to gain access to the opponent’s “friend page.” Obviously the spouse can make a request, but will be unlikely of having the request accepted. Having a friend do so on his or her behalf, however, is fully acceptable.
Be certain to advise your client to withdraw from the public eye and refrain from speaking about divorce, activities, spending, partying, good times and bad times where the comments are memorialized and can be used, misused or twisted. There is no venting, no party, no opinion, no activity where you are undertaking risk or expense, no pictures of you, or your friends that look happy, sad or mad that cannot be distorted by a good lawyer on trial.
And do we need to say more about what might be made of someone’s dating service profiles and communications with respondents in that milieu? Your profile may live much longer than your subscription. There are questions about whether the service would have to comply with a document request, however, there is not much question that the subscriber would be forced to produce the questionnaires and other materials supplied to the services. Lawyers can ask for the names of all sites which a litigant uses, including Linked In, Twitter, MySpace and the like, as well as the usernames and passwords, the IP addresses.
Digital evidence can be compelling in court or at the settlement table, but it’s absolutely critical to understand that there is a right way and a wrong way to capture, preserve and present this type of evidence.
Entrusting others to collect information for your case means you need to be aware of the possible violations of the law.
Judge Michele Lowrance was a domestic relations lawyer for twenty years prior to becoming a domestic relations judge in the circuit court of Cook County, Illinois. She is the author of the book The Good Karma Divorce and has been a guest on Good Morning America, the CBS Morning Show, CNN, ABC and other networks.
Pamela J. Hutul is a partner of Davis Friedman, a Chicago law firm specializing in family law since 1976. She is certified in Collaborative Law and Mediation and named a Fellow at the Collaborative Law Institute of Illinois.