January 25, 2012
by: Julie M. Andrews, Attorney
As social media has started to seep into all facets of our everyday life, it is no surprise that messages and updates shared on Facebook, Twitter, and online dating sites have become increasingly important to the discovery process in a divorce proceeding. In fact, e-discovery has been a hot topic of CLE courses for the past several years as attorneys are eager to stay up to date with the latest method of communication that their clients are using and learn how this information can be used to help bolster a case.
Don’t Commit Libel
Clients would do well to remember that anything they post online, whether it is available to a mass audience or a select group of people, should not contain libelous statements. While this may seem like common sense, there have been several instances of former spouses posting such statements online as a way to retaliate against the other party. Worse yet, are online status updates that end up being self-incriminating, which could be discoverable in litigation.
Divorce is an emotional and often stressful event for a person to experience. One bit of advice is to use common sense when sharing information online. Making comments on social media accounts about your legal counsel, opposing counsel or even court officials is never advised. Think before you post and remember that information posted online is within the public domain.
Passwords Only Protect So Much
Many people assume that because their social media account is protected with a password that these accounts are private. They may also gain a false sense of security about their social media account due to the fact that they have the option of granting someone permission to be their “friend” on their account in order to see their updates.One thing that they most likely aren’t thinking about is the fact that information they have shared online can be requested during the discovery process for admission in court. Taking this issue one step further is a recent case in Connecticut. Counsel for the husband in this case requested the passwords for the wife’s social media accounts to aid in discovery. Counsel contended that the husband had viewed comments on a computer that the wife posted that indicated their children were not her priority. In a surprising move, the judge ordered that the wife turn over her passwords for her online accounts so that opposing counsel could examine private messages that were sent from her accounts. The judge also prohibited the opposing party to send any messages or act on behalf of the account holder and stated that the password was only to be used to access the account to gain information regarding messages on the account.
The Dotted Line
The ethical boundary with e-discovery seems to be becoming a dotted line. While an attorney can search for information that is in the public domain, they should refrain from aggressive tactics and not attempt to “friend” the opposing party online, which would be a violation of ethics. The question now becomes– what is the definition of aggressive? Is the issue of aggressiveness even a concern if it becomes commonplace to turn over social media passwords for divorce proceedings? Where should the line be drawn when going through the discovery process?