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Shawn L. Reeves is a family and divorce lawyer in Columbia, SC.
Clients and opposing parties use Facebook, Twitter, and other social media sites to broadcast some of the most intimate details of their lives. Such information is often relevant in family court proceedings. For example, photographs posted on an opposing party’s Facebook page might be useful in proving a client’s allegations of adultery.
Family court lawyers must learn to navigate social media in order to locate relevant information. Often traditional discovery procedures are helpful, but lawyers may also need to get creative in the discovery process.
Social media can provide family court lawyers with a wealth of information, even prior to the filing of litigation. In many instances, information can be found through a public search of the Internet using search engines such as Google, Bing, or Yahoo or using search functions on social media websites. Much of the information on social media websites is publicly visible to anyone who takes the time to look.
Take Twitter, for example. Many Twitter accounts are publicly visible. A lawyer can easily review the public Twitter posts of an opposing party. This may give the lawyer relevant information about the opposing party. It will at least give the lawyer a feel for the persona, attitude, and interests of the opposing party. That information might then be useful in creating formal discovery requests or in forming questions for depositions.
Twitter, Facebook, and other similar sites do have privacy setting options available to users. The searching lawyer is likely to find much more information on a public Twitter feed or public Facebook profile than a social media webpage where the user has increased the privacy settings. But the search is simple, and it may result in acquiring some useful information.
Though there are many avenues for informal discovery, the lawyer and client must tread carefully with wiretapping laws. The Electronic Communications Privacy Act, 18 U.S.C. § 2510 et seq., deals with wiretapping and intercepting electronic communications. This law may come into play when, for example, one spouse logs into the Facebook account of the other spouse and intercepts messages from the other spouse’s lover. Such an action could violate the wiretapping laws, and the spouse could incur penalties or be subject to a civil lawsuit for the violation. If the lawyer then used the information as evidence in the family court, that lawyer likewise could also be subject to penalties or a civil lawsuit.
Once the litigation has been filed, formal discovery methods are available to the family court lawyer. Interrogatories, requests to produce, and requests to admit may be useful in locating relevant information from social media websites. For example, if a wife noticed photographs on Facebook of her husband at a party with his alleged girlfriend before the husband “unfriended” the wife and increased his privacy settings, the wife’s lawyer should request the relevant information.
The lawyer might serve interrogatories requesting user profile information for social media providers as well as requesting a list of all social media sites the opposing party uses and for how long. Requests to produce might be used to request copies of files on social networking sites, including video and photo files. Moreover, requests to admit might be used to require the opposing party to admit or deny that a certain user name is used by the party, e.g. “Admit or deny that @NakedDrunkPartyDude is your Twitter ID.” The lawyer should get creative with these types of written discovery requests.
Depositions may also be useful with regard to social media use. The lawyer might ask the witness or opposing party questions about that person’s social media use. If the lawyer has specific documents, files, photographs, or videos obtained from the witness’s social media site, the lawyer might ask for explanations of that evidence and even use the testimony to assist with authentication of the evidence.
Preservation of evidence is an important issue relating to formal discovery. At the outset of a family court case, many lawyers recommend that their clients close social media accounts. However, lawyers are ethically bound to preserve evidence, and a preservation-of-evidence letter at the outset of a case might prove useful. The lawyer might send a letter to the opposing counsel making the following points: (1) the lawyer plans to seek social media information in discovery, (2) what information will be requested, and (3) what sources might contain the information. If there is an imminent risk of destruction, the lawyer might seek a protective order.
Subpoenas may be used to obtain certain social media evidence. For example, if the Facebook friend of an opposing party is under subpoena to testify at a deposition, the lawyer could presumably include in the subpoena a requirement that the witness bring copies of all social media communications between the witness and the opposing party.
What the lawyer cannot do is subpoena records from the Internet service provider (ISP). Pursuant to the Stored Communications Act, 18 U.S.C. § 2702(a)(1), “a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service” with certain very limited exceptions. Those exceptions do not include family court lawyers subpoenaing social media communications from companies such as Facebook or Twitter. If the lawyer serves a subpoena for such records to Facebook, she or he is likely to get a response citing the Stored Communications Act.
There are a few bits of information, however, that the ISP may provide to the requesting lawyer. Although the entity providing the electronic communication service cannot provide copies of online content, it can provide information such as (1) verification of user identity, (2) customer status, and (3) basic account status and history. The lawyer may at least subpoena the narrow information the ISP can provide, including user profile names, home and email addresses, and the period of social media account activity.
There are certain ethical pitfalls the lawyer must remember when navigating social media discovery. Primarily, the lawyer must not use deception to obtain social media discovery. The Model Rules of Professional Conduct prohibit a lawyer from knowingly making misrepresentations while representing a client (See Model Rules of Prof’l Conduct R. 4.1, “Truthfulness in Statements to Others”). Therefore, a lawyer should not pretend to be someone else online to gain access to social media information. For example, a lawyer should not create a fake Facebook account and pretend to be the opposing party’s long-lost friend from high school so the lawyer can “friend” the opposing party and gain access to his or her Facebook profile.
Additionally, the lawyer cannot contact an opposing party who is represented by an attorney (See Model Rules of Prof’l Conduct R. 4.2, “Communication with Person Represented by Counsel”). Such contact is prohibited even via social media.
Considering these and other rules of professional conduct, there is certain conduct that is unacceptable. A lawyer should not pretend to be someone else in seeking contact with an adverse witness. The lawyer should probably also advise the client and any investigators not to pretend to be someone else in seeking contact with an adverse witness or party.
Additionally, the lawyer should not communicate, even on social media websites, with an adverse party who is represented by counsel, nor should the lawyer pretend to be someone else in seeking contact with an unrepresented adverse party. Further, the lawyer should advise the client and any investigators not to pretend to be someone else in seeking contact with an adverse party.
As referenced above, the lawyer possesses a duty to preserve evidence. Therefore, as mentioned above, a lawyer should not counsel a client or investigator to suppress or destroy social media evidence, which is a relevant consideration regarding the lawyer’s counsel to a client about closing or deleting a social media account.
At the outset of representation, the lawyer should develop a strategy for social media discovery. The lawyer should determine what information she or he might need to prove the client’s claims or defenses. The lawyer should also determine what data needs to be preserved and provide notice to the opposing party or counsel of the duty to preserve evidence. As to possible discovery methods, the lawyer should conduct a cost/benefit analysis with the client. In this manner, the family court lawyer can implement a social media discovery plan that has been developed and agreed upon between the lawyer and the client.