May 2015 Vol. 44, No. 5 Page 45. Articles Family Law Preservation of Social Media Evidence in a Family Law Context

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1 May 2015 Vol. 44, No. 5 Page 45 Articles Family Law Preservation of Social Media Evidence in a Family Law Context by Kevin C. Massaro, Taylor P. Statfeld Family Law articles are sponsored by the CBA Family Law Section to provide information to family law practitioners. Articles focus on practice tips and discussions of current issues within the realm of family law. Coordinating Editors Patricia A. Cooper, Denver, of the Law Office of Stephen J. Harhai (303) , com; Meredith Patrick Cord, Colorado Springs (719) , About the Authors Kevin C. Massaro is of counsel at The Harris Law Firm, P.C. and is currently practicing exclusively in family law Taylor P. Statfeld is a recent graduate of Emory University School of Law and is currently practicing exclusively in family law at The Harris Law Firm, P.C. Social media evidence has emerged as an important tool in family law litigation. As a result, the duty to preserve evidence now implies a duty to preserve social media evidence. It is critical that family lawyers properly advise clients regarding this matter to avoid harsh sanctions. Social media websites, such as Facebook, Myspace, and Twitter, have had a substantial impact on the practice of family law, as evidenced by a survey released by the American Academy of Matrimonial Lawyers (AAMA) in The surveyors found that 81% of its 1,600 members had used information obtained from social media sites. 2

2 Using information from social media sites can be especially effective in cases involving allocation of parental responsibilities (custody), because a party s character and credibility are centrally at issue. For example, a court granted Father primary custody after Mother made negative and threatening comments about him on Facebook that were visible to the child. 3 In another, more well-known case, the appellate court affirmed the termination of Mother s parental rights after she admitted on Myspace that she planned to stop using drugs only while litigation was pending and to use drugs as soon as the proceedings completed. 4 The AAMA survey and case examples above demonstrate that social media evidence has become an effective and common tool in family law litigation. Thus, it is important for family lawyers to be familiar with preserving social media evidence and the consequences for failing to preserve such evidence known as spoliation. To understand the main concepts, this article begins with an overview of the duty to preserve evidence and the consequences of violating that duty. Next, it explains how to preserve social media evidence. Finally, it discusses ways to obtain discovery of such evidence. The Duty to Preserve Evidence Parties and their attorneys have a duty to ensure evidence is not lost, ruined, or destroyed. The general standard is that there is a duty to preserve evidence that is relevant to the litigation, within a party s possession or control, and reasonably anticipated as discoverable in litigation. 5 For example, if a mother requesting equal parenting time with her son wrote negative and inappropriate comments on Facebook about her son, the duty to preserve evidence would arise and Mother s attorney would need to advise her accordingly. In applying the standard, the duty to preserve evidence would arise because the comments are relevant because exposure to such negative comments are not in the child s best interests. 6 The Facebook posts are within Mother s control because she can delete, edit, and add further comments. Lastly, the Facebook posts could have been reasonably anticipated as discoverable, because there are major issues involving parenting time with the child and the opposing party would typically be interested in negative acts or comments by the mother toward the minor child. However, this simple application of the standard is difficult to follow in practice. The lawyer cannot possibly predict every piece of evidence that will be relevant and discoverable throughout the litigation. Furthermore, discovery requests are often broad and relevant evidence usually cannot be discovered until after production. Because of the difficulty in applying the standard, the family lawyer should be cautious and assume that most if not the entirety of the client s social media accounts will be requested. Therefore, keeping a party s Facebook page intact and avoiding any deletions or edits would be wise and risk averse. Failing to Preserve Evidence: Spoliation Sanctions Although it may be tempting to delete damaging Facebook photos or comments, family lawyers should advise their clients, as soon as they walk through the door, to avoid tampering with their social media accounts. Failure to properly advise clients on the duty to preserve evidence has resulted in large sanctions against a party and his or her attorney. In Lester v. Allied Concrete Co., the trial court ordered sanctions against an attorney in the amount of $542,000 and against his client in the amount of $180,000, after the attorney

3 advised his client to "clean up" his Facebook account and sixteen photos were subsequently deleted. 7 The deletion occurred despite a previous discovery request and a Motion to Compel printouts of the Facebook account. 8 Other sanctions for violating the duty to preserve have consisted of attorney fees and costs, adverse inference jury instructions, and even threats of jail time. 9 In Victor Stanley v. Creative Pipe, the court found that a party willfully destroyed evidence and threatened that party with jail time if he failed to pay for opposing party s fees and costs. 10 Notably, the willful standard in Victor Stanley is not necessary for an adverse inference instruction. An adverse inference instruction involves an instruction to jurors that they can assume the destroyed evidence would have been unfavorable to the party responsible for its destruction. 11 Most jurisdictions require that the conduct contributing to the loss or destruction of evidence be intentional and in bad faith before issuing an adverse inference instruction. 12 The requirement that the conduct be intentional is not necessarily defined as the intention to deprive opposing party of evidence; it may simply be defined as the intention to commit the act that destroyed the evidence. In Gatto v. United Airlines, Inc., the court decided an adverse inference instruction was appropriate after determining the plaintiff intentionally deleted his Facebook account, regardless of whether the plaintiff intentionally did so to deprive the opposing party of access to his account. 13 However, for the Colorado family lawyer reading this article, the Colorado Court of Appeals has held that a trial court s inherent power to impose a punitive sanction for spoliation is not limited to intentional spoliation of evidence. 14 In Pfantz v. Kmart Corp., the court explained: If a party who spoiled evidence is merely negligent, an adverse inference nevertheless may be imposed to remediate harm when the inference is reasonably likely to have been contained in the destroyed evidence. 15 Thus, even if a party is merely negligent in failing to preserve evidence, that party may be subject to an adverse inference instruction in Colorado. 16 How to Preserve Evidence To avoid sanctions such as the adverse inference instruction in Gatto or the large fines in Lester, knowing not only what to preserve but how to preserve social media evidence is essential. Once the duty to preserve is triggered, a client s social media evidence may be preserved via a litigation hold memorandum, for example. 17 A litigation hold memorandum is essentially a letter by the attorney to his her client explaining the client s duty to preserve evidence and instructions on how to comply with that duty. 18 One way for a client to comply with his or her preservation duties is by using an option on Facebook known as "Download Your Info." 19 The option to "Download Your Info" allows a Facebook user to download a zip file containing information, posts, messages, and photos with one easy click. 20 Twitter also offers a similar option that allows users to download all tweets by requesting a copy of the user s Twitter archive. 21 There are even third-party vendors who are designed to archive and collect social media content, such as CloudPreservation and X1 Social Discovery. 22 These preservation options are beneficial

4 because they act as an insurance policy. Once the zip file is downloaded, tampering with social media evidence thereafter is less problematic. Preserving Evidence Through Discovery Although preserving a client s Facebook account can occur by a simple click of a button, ensuring preservation of opposing party s Facebook or other social media account is not as simple. Specifically, at the beginning of a case, counsel should consider sending a spoliation letter to opposing counsel. 23 Spoliation letters basically advise the attorney and client that they are under a legal duty to protect and maintain any and all documents and data related to the matter. 24 Once a spoliation letter is sent, the next step is pursuing social media information through traditional discovery, such as interrogatories. 25 The interrogatory might ask the party to identify all social media accounts, including but not limited to Facebook, Twitter, Myspace, and LinkedIn, and any posts on those accounts that relate to the case. 26 A request for production of documents might ask for a copy of all accounts identified and any and all information posted. 27 As explained earlier, the lawyer cannot know exactly what evidence will be relevant and useful until he or she has all the information, so the interrogatories and requests for production should be broad, such as "all accounts" and "all information." Counsel can also try to obtain social media information from the website company. The most effective way of obtaining information from companies such as Facebook is to first request a signed authorization by opposing party, authorizing the social media website to release specified account information. The Stored Communications Act, 18 USC 2701, protects information contained in social media websites from disclosure; thus, obtaining such information from the company without an authorization by the opposing party would likely be difficult. Once a party has a signed authorization, or even if there is no authorization, the last step is to prepare a subpoena to the website company for production of account information. If discovery is successful, evidence will be preserved. Conclusion The duty to preserve is a broad one; thus, the attorney and his or her client should be very careful not to delete anything that relates to the matter. Completely avoiding tampering with social media accounts is often the best advice, because the entire account may be and often is requested by opposing party. To preserve evidence, download options are available, and obtaining information from website entities via subpoena is also an option. Failure to preserve evidence can result in harsh sanctions, such as attorney fees and adverse inference jury instructions. Social media account information can be destroyed with a click of a button, so it is important to understand the duty to preserve evidence, especially because social media evidence can be very useful in family law. It can catch someone in a lie or convey the true intentions of a party, as in one instance where a lawyer discovered Father s Facebook post stating he was "single with no children looking for a good time," while Father was seeking parenting time with the minor child. 28

5 Notes 1. Brozan, "Divorce Lawyers New Friend: Social Networks," The New York Times (May 13, 2011), 2. Id. 3. In re Marriage of Bates, 817 N.W.2d 32 (Iowa 2012). 4. Dexter v. Dexter, No P-0051, 2007 WL (Ohio App. May 2007). 5. Dibianca, "Discovery and Preservation of Social Media Evidence," Business Law Today (Jan. 2, 2014), 6. Id. 7. Lester v. Allied Concrete Co., 83 Va.Cir. 308 (Sept. 6, 2011). 8. Id. 9. Robertson and Miskel, "Electronic Evidence How to Avoid Getting Shocked," Victor Stanley v. Creative Pipe, (D.Md. Sept. 9, 2010). 11. Zubulake v. UBS Warburg, 220 F.R.D. 212, 217 (S.D.N.Y. 2003) (Zubulake IV). 12. Burnette, Jr., "Spoliation of Evidence: A Fire Scene Dilemma," Gatto v. United Airlines, Inc., No ES-SCM (D.N.J. March 25, 2013). 14. Pfantz v. Kmart Corp., 85 P.3d 564 (2003). 15. Id. 16. Id. 17. Eiselein, "The Times They Are A-Changing: Social Media Discovery, the Proper Use of Social Media in Family Law Cases, and Ethical Considerations," 2014 Annual Family Law Institute (August 3, 2014). 18. Id. 19. Dibianca, supra note Id. 21. Id.

6 22. Id. 23. Id. 24. American Bar Association Section on SoloSez Popular Threads, Spoliation of Evidence Letter (Sept. 2012), threads_2012_09_spoliation_of_evidence_letter.authcheckdam.pdf. 25. Parker and Swearingen, "Tweet Me Your Status: Social Media in Discovery and at Trial," The Federal Lawyer (Jan./Feb. 2012), Tweet_Me_Your_Status_Social_Media_in_Discovery_and_at_Trial.pdf. 26. Id. 27. Id. 28. Brozan, supra note 1.

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