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No, You Can’t Call Him an @?%#! on Facebook

Counseling clients about social media and divorce

Divorce is one of the most stressful and painful experiences a person can undergo. And in the age of social media, where people often feel compelled to broadcast every little detail about their lives to the whole planet, the experience can become even more fraught. There is significant risk to clients who choose social media as the avenue to convey their feelings and document their actions in this difficult time. While it is human to want to share your pain and anger, social media records can find their way into court pleadings and proceedings. Judicial officers will be displeased to read posts that criticize, demean, or otherwise case a negative light on the other party.

A person’s social media footprint looms so large as a potential factor in divorce that, prior to meeting with a client, I’ll often do an assessment of her social media presence. I’m looking for existing issues, but also to get a handle on personality and temperament. I much prefer to have a sense of what I can expect and to determine whether coaching will be needed on any issues. Social media is often an outlet for clients to keep in communication with supportive friends or family. But posts that may seem harmless or newsworthy to the client may prove to be unpleasant or damaging in the eyes of others. If I had a nickel for every time I had to say, “No, Janice, you can’t call him a SOB on Facebook,” chances are I’d have a nice place in the Caribbean by now. 

Unless I see a significant problem, the initial consultation isn’t typically the place to talk about social media or the related problem of disentangling a couple’s digital resources. As a divorce attorney, I may be the first person with whom a client has even talked about a divorce. An initial consultation is often highly emotional and sometimes the client is overwhelmed with information just about divorce laws and the process itself. Once retained, however, I will schedule a time where we discuss social media, communication by email and text message, and access to online accounts. It may even be helpful to create a handout or post a blog entry on your website to which you can refer clients.

First things first

Social media can be a great way to connect with people—but in a divorce, it is one of the most common traps a client can fall into. Drunken vacation photos, memes about parents who just want to keep the kids for child support (or other memes that point blame at ex-spouses), and tweets generally badmouthing people related to the divorce are not helpful in the divorce process. Opposing counsel and judicial officers will see this communication adversely.

It’s also important to learn whether the client’s children are on social media, and if necessary take steps to prevent their exposure to this kind of content. Back in the days when MySpace was popular, I had an opposing party who liked to write erotica.
She had a pseudonym with a MySpace profile. But the parties’ children, who ranged in age from eight to 14, were “friends” with the account she created under her pseudonym (along with a lot of other creepy people). We were able to use this as evidence in our custody case. 

By its nature, social media creates a sort of cocoon that makes it easy for a client to believe all of his or her friends are loyal, caring individuals. This is a myth. I talk with clients about asking their friends never to publish compromising pictures or posts involving the client. More importantly, clients must understand the importance of managing their own online behavior and hewing to best practices during the divorce proceedings. 

If they can’t, then I advise them to stop using social media entirely—cold turkey. It’s the only way to guarantee that no new damaging information from those outlets will ever end up in front of a judicial officer. A client can deactivate their profiles for a period of time. When cases are extremely contentious and you have a client whose posts are continuing to ratchet up the conflict, this may be the best practice. 

Stop sharing digital accounts

Couples frequently share digital accounts. One of the first things I advise is to change all passwords—this means every account, including social media, email, patient health records, credit cards, and financial accounts in the client’s own name. It seems like an obvious task, but at a time when the client is overwhelmed and stressed, it often gets forgotten or delayed. This simple action can prevent a lot of trouble down the road. I always advise clients to make the change significant, not just one letter or number. Do not pick a password that has personal significance that a spouse could guess, such as a child’s birthdate or a pet’s name. Also, it is not wise to write it down somewhere that the spouse could find it. If your client needs help remembering passwords, suggest downloading a password keeper app for their phone. Reading someone else’s email without permission is a crime under the Electronic Communications Privacy Act (18 U.S.C. §2510). 

I once had a situation where a client had followed my advice and changed his email password, but because he had only changed one number in the password, his wife was able to access his email account. She read every email that he and I had exchanged, and even forwarded a few to herself. My client reported the illegal access to his local police department but was dismissed as a disgruntled soon-to-be-ex-spouse. Getting a police department to investigate and a prosecutor to charge the crime is difficult. Knowing this, it’s important for clients to take changing passwords seriously to protect their private information and communications with their attorney. Clients might consider creating an entirely new email address that their spouse does not know about, just for attorney-client communications. 

Sometimes a divorcing couple still shares a residence. This may mean that they share a computer or other electronic device. I advise clients to delete all saved passwords. Saving passwords for websites saves time, but they can also be used by an unscrupulous spouse to gain access to accounts and information. And clients must also keep in mind that there are many ways passwords may be saved. The individual website may save the password, but the web browser might also save the password. Instruct your client to review the browser settings and delete the passwords saved there. Next have them delete their “cookies” in order to remove the passwords saved on the individual websites.

More do’s and don’ts

Accounts and information may be shared across several devices. Apple products users need to pay special attention to this. For example, text messages and emails sent from an iPhone may show up on an iPad or a Mac computer. 

I once had a client who could not figure out how her spouse knew information from text messages that she had sent to close friends and family members. It turned out that her Apple account was linked to her daughter’s iPad, and her husband read all of her text messages when the daughter brought the iPad to his house during parenting time. Another client’s teenage daughter found out her mother was having an affair in a similar way. The daughter was using her mother’s Mac Book while her mother was texting with her paramour on her iPhone, and the daughter read all of the text messages being sent back and forth while she was using the computer to do her homework. 

Often, clients may want to move on to their next relationship while the proceedings are ongoing, and will turn to online dating to meet new people. Dating profiles will often contain information that paints the client or opposing party in a very good light, true or not. This profile data is public. If a party embellishes their profile to indicate they are wealthy, childless, or the owner of multiple homes or properties, problems will certainly arise. For instance, while your client may want potential dates to believe he makes $750,000/year, if his pleadings state he’s self-employed and doesn’t make any money, this will be problematic. 

I generally advise clients to watch everything that they do on the internet. Even their Craigslist postings or eBay transactions may prove significant. The last thing you want to see is your client selling all of the parties’ personal property on the Facebook Garage Sale Group. I recently had a case in which my client’s former neighbors called him to let him know there was a lot of traffic coming and going from the house. He discovered his wife had posted a liquidation sale on Craigslist. She was selling everything. 

GoFundMe or other fundraising websites are another great resource for mining information. If one of the parties starts up a GoFundMe campaign to raise money for legal fees and posts it all over Facebook, someone is going to see it and share it with the opposing party. A party that starts up a GoFundMe campaign usually has a story to go along with their request for money—often embellished in order to elicit sympathy—and those statements can be used against them. 

Limiting any damage

Despite all of your warnings, divorce is painful and messy. Emotions run high, and clients will make missteps. When that happens, the most damaging thing your client can do is try to cover it up or hide it. Do not ever advise your client to delete posts. Deleting a post is spoliation of evidence. Instead, they can change the privacy settings so that the post is only visible to them. 

Whatever emerges from social media or other internet sources, your client needs to take responsibility for the issue and explain why the action was taken. If your client sends their spouse inflammatory text messages or emails, for example, advise your client to immediately stop the behavior. The client should apologize for the communications and then simply quit the offending behavior. If they own up to it and the behavior stops, those offensive communications could become a blip on the radar at trial. In other words, bury the bad communication in a stack of good communication. 

One slip-up is unlikely to be the death of your case. We can all certainly understand that people get frustrated and sometimes reach their breaking point. Sometimes when that happens they act out in a manner that they should not—and usually would not. If counterproductive behavior becomes habitual, though, your client will have a significant problem. 

Ultimately, the best advice we can give our clients in a digital world is to imagine their judicial officer is sitting over their shoulder, watching every post, email, and communication. It’s difficult for clients to turn off the emotions that come with the most stressful events of their lives—but as counsel, we can help them understand how significant it can be when they make mistakes, and help them navigate the digital world as safely as possible.

 


Social media and discovery

If you discover that the opposing party in a case has posted something improper on social media, you will need to obtain a copy of that post in a manner that is authenticated and admissible. You can do this in one of three ways. First, you can get the information by obtaining the consent of the opposing party (a release of information). Second, you can subpoena the provider. Finally, you can request that the opposing party produce the data. 

If you are able to get a release of information from the opposing party, this might be the best way to obtain the evidence. Most attorneys would probably think that subpoenaing the information directly from the provider is the best practice. It’s not. For example, Facebook, the largest social media provider, takes the position that the Stored Communications Act (18 U.S.C. § 2701) protects them from having to provide access to specific information or posts based on a civil subpoena. They will respond only to federal or California subpoenas. If the subpoena comes from another state, the subpoena needs to be domesticated by a California court. 

Even then, Facebook will only provide what is called a “neoprint” of the user’s basic information. Facebook will also charge a processing fee for the subpoena. The amount they charge changes from time to time, and at one time was as much as $500. And you will likely have to work with a California attorney to have your subpoena domesticated in California. It’s extremely costly and it’s unlikely to give you the information you need. 

The better practice is to send a Request for Production to the opposing side requesting that the opposing party “download their Facebook information.” To do this, instruct the opposing party to go to www.facebook.com/settings and click on “your Facebook information.” Next, they will click on “view” under the category “Download Your Information.” Facebook will allow the user to create an html file that will download posts, photos and videos, comments, likes and reactions, friends, following and followers, messages, groups, events, profile information, pages, marketplace activity, payment history, saved items and collections, your places, apps and websites, and other activity. 

You will need to instruct the opposing party on the date range that you want information from, and all of the categories of information you want them to select along with the quality and format of the information. For example, you might send a request that requires the opposing party to download their Facebook information from January 1, 2018 to February 20, 2018 in the categories of posts, photos and videos, comments, likes, and reactions in a high quality html file. Facebook will then create the html file with the requested information. That file can then be saved by the user and provided to you. If you have a Facebook account, I recommend that you consider doing a download of your own data to see how the process works. 

If you have already obtained the post that you want to authenticate through your own Facebook sleuthing, or you have obtained it through your client or your client’s friend, you can authenticate the post through a Request for Admissions. Requests for Admissions are permitted under Minn. R. Civ. Pro 36.01 to verify the genuineness of any documents described in the request. A copy of the document must be served with the request. The opposing party then has 30 days to respond to the Request for Admissions, in writing, or the requests are deemed to be admitted. A party must be truthful in their answers to the Request for Admissions; if they are not, the court has the authority to deem the matter admitted or require that an amended answer be served. 

If you know social media evidence is going to be important in your case, make sure that you plan your discovery strategy early. Obtaining the social media evidence directly from the opposing side is usually going to be the best way to authenticate it. If you need to engage in formal discovery, make sure to leave enough time to allow the opposing side to respond.

 

TIFANNE E. E. WOLTER is an associate at Henningson & Snoxell, Ltd in Maple Grove. She has concentrated her practice in family law for the past 16 years. Tifanne is active in the MSBA’s Family Law Section and currently serves as the vice-chairperson.

 

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