SOCIAL MEDIA, FACEBOOK AND DIVORCE IN MINNESOTA
Working for a family law firm exposes me frequently to the pitfalls, in a divorce, of the internet, especially social media such as Facebook. The December 2012 issue of Bench & Bar, the official publication of the Minnesota Bar Association, www.mnbar.com carried an interesting article (Social Media Discovery http://mnbenchbar.com/ ) by Heidi M. Silton and Courtney Blanchard, on the topic. While written for attorneys, the article is interesting to a layman first of all for showing the attention paid by lawyers to the topic, and, second for what it contains.
FACEBOOK, SOCIAL MEDIA, AND DISCOVERY
The article focuses on discovery. Briefly stated, discovery is the pre-trial phase in a lawsuit in which each party can obtain evidence from the opposing party by means including requests for answers to interrogatories, requests for production of documents, requests for admissions and depositions, and subpoenas. Sometimes, discovery is done formally through documents captioned and titled “Interrogatories,” “Requests to Produce Documents,” “Requests for Admissions,” and “Subpoena”. These days, it is far more often for discovery to be done informally by letters between attorneys.
Silton and Blanchard write, “Courts have established that Facebook and social media information, even if guarded under privacy settings, is discoverable if it is shown to be material and relevant to the claims or
defenses.” That means that you may be required to provide access to your social media accounts to your spouse, the other parent or his/her attorney. This might be by accepting a friend request from the other
side, or more preferably, you may be permitted to provide paper printouts showing your social media activity. However… if you think you will be able to save yourself from having embarrassing, private, or incriminating appear in your divorce case, think again!
SPOLIATION, SOCIAL MEDIA, AND LEGAL DISCOVERY
Silton and Blanchard discuss spoliation, the legal doctrine which permits courts to issue sanctions if you destroy evidence. Deleting posts from your account, whether those posts are or might be subject to discovery; could be spoliation, and the penalties of spoliation can be quite severe. Yes, you can lose custody of your children if you destroy evidence! Jennifer Moore, of Moore Family Law, PA, says, “Many of my clients already have access to the other side’s social media accounts either through a friend or relative, an assumed name, or in their own name. There is a good chance that you will be caught if you delete comments.”
Moore continued, “Parties to litigation should be cautious of what they post and what they delete. Additionally, watch those friend requests! You may be unwittingly accepting a friend request from the other side to your litigation.” Moore notes that although the issues are unsettled, it is likely that an attorney who sends you a friend request without your approval or a Court Order would be subject to discipline.
“Attorneys are not permitted to communicate with the opposing side if they have an attorney. A friend request is probably exactly the type of communication that is prohibited under the Rules of Professional
Interesting issue! What strikes me is that this is not settled law. Like everything in life, you take your chances when you go to Court. Furthermore, while it’s oversimplifying to declare, “once on the internet nothing is ever deleted,:” it is true that, once on the internet, you can be subject to sanctions if you don’t disclose it during discovery.