Social Media: Oh What a Tangled Web We Weave
by Charla Bradshaw
Social media has become the fabric of our lives. Facebook, Instagram and Twitter amongst the most popular. Many people identify themselves through their social media for the whole world to see. We share personal and professional news, as well as tons and tons of pictures. Unfortunately however, sometimes things are shared on social media without thinking through the possible consequences. Not every “friend” is a friend, and “private” no longer means private.
Electronic devices and social media are a family lawyer’s dream for evidence. The words “It’s admitted” can be devastating. We can get valuable information from social media, and from all electronic devices such as cell phones, Ipads, and computers, to name a few. During the fact finding process of a family law case, such as divorce or custody, we can obtain information from these sources. For example, “friends” of the other party in a family law case can provide valuable information about that person. It is interesting that the company a person keeps has broadened substantially since the onset of social media!
We can learn valuable financial and asset information on social media because people often boast about raises, promotions, vacations, and their assets. We can even learn all about a person’s social life, something that could only be done with private investigators before social media. This information can be valuable, for example, we can learn what a person is doing when they are claiming they cannot pay support. And, even if a person does not post the information, the same information can be learned through friend posts or “tagging.” Social media can prove behavior patterns which cannot be denied. And, sometimes a person’s ego can get the best of them, causing catastrophic damage to their family law case.
In addition to activity on social media and networking websites, emails and texts can be subpoenaed and such can be analyzed with great detail. Forensic computer experts can extract electronically stored information (“ESI”) even that which one thinks is “deleted”. “Deleted” information can be quite devastating to a person’s family law case. These experts can also extract all searches on an electronic device. It is important to be aware of personal offsite data storage services such as Icloud and Google Drive. And, that some social media, such as an entire Facebook page (expanded and archived), can be downloaded.
Deleting information or social media altogether raises important and interesting issues. In general, a civil attorney should never advise their client to destroy any evidence, including evidence found on their social networking sites. We call this “spoliation”. In 2011, a Virginia court sanctioned one lawyer $542,000.00 because his legal assistant advised their client to remove Facebook pictures that were detrimental to his case. When the defendant’s lawyers learned this had happened, they filed for sanctions against the lawyer and his client for spoliation of evidence.
In Texas, spoliation is defined as the as the improper destruction of evidence relevant to a case. To the extent there is information on a party or witnesses’ social media, which reveals facts or information relevant to the family law case, the deletion of that evidence could be spoliation. If an attorney believes the other party has destroyed evidence relevant to the case, the attorney can ask for sanctions and for the court to assume that the evidence was detrimental to the spoliator.
The first rule of thumb with regard to all social media is to avoid putting anything in an email, text, online or anywhere that you would not want the whole world, including a court, to see. The second rule of thumb is to update all privacy settings on all social media accounts and to password protect all devices. Following are customary words of wisdom for clients in a family law case (although a client should always obtain advice from their attorney):
- Everything you submit on social media can be used as evidence.
- Cease activity on your social media sites, or at the very least ensure that your information is private and not available to a spouse or ex-spouse or anyone favorable to them.
- Provide your attorney with a list of every social media site in which you and your spouse or ex-spouse participate. Your attorney must know your activity as well as your spouse or ex-spouse’s activity.
- Do not remove or destroy anything from a social media site that exists when the lawsuit is filed or even if a lawsuit is anticipated unless you have received specific advice from your attorney to do so and you understand the potential consequences in doing so.
Social media activity is not only public, it is permanent. And with the explosion of social media, detrimental and irresponsible behavior is now easier to discover than ever before. “Privacy” is a thing of the past. “Our bravest and best lessons are not learned through success, but through misadventures.” Amos Bronson Alcott