Social Media: Questions of Admissibility and Ethics

How much of this information is accurate? Can information found on a computer be attached to pleadings in support of the client's position without further verification? Can it be admitted into evidence? How can it be gathered ethically?

This two-part article is divided into three sections: 1) Social media, defined; 2) Examples of how social media has been used in family law cases; and 3) Ethical considerations for attorneys who gather social media evidence.

Social Media

Social media can be defined as “forms of electronic communication (such as websites for social networking and microblogging) through which users create online communities to share information, ideas, personal messages, and other content (such as videos).” See Social Media, Merriam-Webster, http://bit.ly/2fKyxEk.; “Social networking over the Internet has taken the world by storm — revolutionizing the way people communicate by allowing users to publish their private lives on a world stage.” Friend Request or Foe? Confirming the Misuse of Internet and Social Networking Sites by Domestic Violence Perpetrators, 19 Widener L.J. 933 (2010).

This has resulted in key evidence being available on social platforms, not only on the most popular social media sites, such as Facebook, Twitter, and LinkedIn, but also on many others, including:

• Content/Media Sharing, e.g., YouTube and Instagram;
• Activity Tracking, e.g., MapMyRun and Foursquare;
• Blogs and Microblogs;
• Collaboration Sites, e.g., Wikipedia;
• Social News, e.g., Digg, Reddit;
• Discussion Forums; and
• Review Sites, e.g., TripAdvisor and Yelp.

However, a key feature is that much of social media content is accessible publicly, while it is also possible to leave public written messages to other users, but not all. Social media and other digital communication formats are part of a broader category of electronically stored information and share some characteristics with other types of electronically stored information. For example, the private messaging feature of many social media sites is similar to both email and text messaging.

Social Media in Family Law Cases

There has not been a flood of matrimonial cases addressing the use of social media, so there is limited precedent as guidance. This may be due to the facts that many cases are resolved outside of court and that this is a new issue. But, also, many family law practitioners may not be offering to admit social media into evidence. Still, there are some reported family law cases in various states that address this issue. They demonstrate some of the evidentiary hurdles an attorney should be prepared to face when submitting evidence from social networking sites, and also the legal challenges that an attorney should consider when presented with objectionable or potentially fraudulent social media evidence from his/her adversary.

Collectively, social media evidence seems to be admissible if there is proper authentication. However, attorneys have the ability to challenge the admission of social media if there is doubt about the authenticity of the records being presented by the other party. Fed. R. Evid. 901(a). Note that the U.S. Court of Appeals for the Third Circuit recently held that social media communications are self-authenticating as “business records.” See U.S. v. Browne, 834 F.3d 403 (3d Cir. 2016).

A glaring example of how social media can be used in custody matters is the case of Dexter v. Dexter, decided by the Court of Appeals of Ohio. 2007 -Ohio- 2568, ¶ 1, 2007 WL 1532084, at *1 (Ohio App. 11 Dist. 2007). The mother there stated “both in her testimony and through her writings in on-line [sic] blogs, that she practiced sado-masochism, was a bisexual and a pagan.” Id. at *6. The mother challenged the admissibility of this evidence. Ibid. See also J.N. v. D.R.M., No. CN07-01654, 2008 Del. Fam. Ct. LEXIS 62, at *17 (Del. Fam. Ct. Jan. 29, 2008) (relying heavily on photos posted on MySpace that highlighted a mother's drinking habits in a decision to deny the mother sole custody). Dexter, supra at *6 (Ohio App. 11 Dist. 2007). With respect to the evidentiary hurdles in Dexter, the mother admitted in court that she wrote the online blogs on her MySpace account, and that those writings were open to the public to view. Thus, the Court of Appeals of Ohio found that she could hardly claim an expectation of privacy regarding the writings.

In Shaw v. Young, 199 So.3d 1180 (La. App. 4 Cir. 2016), a case in which the husband sent electronic messages to the wife and posted negative things about her online, the Court of Appeals of Louisiana held that the “husband's repeated emails and text messages to his wife and his repeated postings on his social media account about her constituted cyber stalking … qualified as domestic abuse and thus supported the issuance of a permanent Protective Order.” The wife testified that her husband posted messages on Facebook about her immigration status. She also said that he released private photographs of her to others and sent messages to her friends saying “bad things” about her — messages that the friends then forwarded on to her.

The Court of Appeals of Louisiana found that these messages, “whether they were e-mails, text messages, or even letters — constitute a repeated pattern of verbal communications or nonverbal behavior without invitation that would cause a reasonable person to feel alarmed or to suffer emotional distress.” Shaw v. Young, 199 So.3d 1180, 1187 (internal quotations omitted). The applicable Louisiana statute specifically includes cyber stalking and a definition of electronic communications. Id. The court further found that the Facebook pages in question were public, and while Facebook users can restrict access, individuals that were not the husband's friends were getting contacted, and he had not utilized any privacy settings.

In a recent Florida District Court of Appeals decision, dated June 24, 2016, the court admitted into evidence various postings on social media with regard to an application made by the former husband seeking to reduce or terminate alimony due to the ex-wife's cohabitation. Martin v. Robbins, 194 So.3d 563 (Fla. App. 5 Dist. 2016). Photographs of the former wife and her paramour's elaborate wedding ceremony were entered into evidence, along with numerous postings on social media indicating that the former wife and her paramour were in a loving, romantic relationship.

In Irions v. Holt, 156 So.3d 956, 961 (Ala. Civ. App. 2014), the Alabama Court of Civil Appeals ruled in a custody matter in which social media posts made by the father were entered into evidence by the mother. The father admitted that the posts were in “poor taste.” The mother further presented evidence that the daughter followed the father's social media. However, the Alabama Court of Civil Appeals found that there was no evidence indicating that the daughter had actually viewed the allegedly inappropriate posts. So, while the social media posts were admitted into evidence, and authenticated by the parties' testimony, the weight of the posts was overcome by the fact that there was no evidentiary proof provided that the daughter had in fact observed what had been posted.

In K.A. v. J.L., 450 N.J. Super. 247 (N.J. Super. Ch. 2016), the New Jersey Superior Court, Chancery Division, Morris County, addressed the use of social media to effect substituted service of process. In K.A., adoptive parents filed an application seeking to enjoin the alleged biological father from holding himself out as the biological father of their adopted son, from contacting the adoptive parents, and to compel him to remove information pertaining to their son that he published online. The court held that service of process through the social media platform of Facebook, after the parties had unsuccessfully tried to serve the alleged biological father through certified mail, would be permitted by the Superior Court of New Jersey. The court reviewed the the issue by asking the following questions in order to establish that service by Facebook was proper:

• Could the defendant be served by conventional means, those specifically permitted by court rule?;
• Was the relief sought appropriate for service by publication?; and
• Would service by Facebook still protect the defendant's due process rights?

The New Jersey Superior Court found that it was demonstrated that the alleged biological father had his own Facebook account and that, therefore, there was a substantial likelihood that he would receive the complaint and order to show cause. The alleged biological father further appeared telephonically at the hearing, thus establishing that he was served. However, the New Jersey Superior Court found that “such confirmation need not always be present given the facts of a particular case if there is sufficient evidence that the Facebook account was the defendant's.” K.A. v. J.L., supra at 254.

The decision was limited to the specific facts of the case, and the court noted that “there is a split among courts on whether service by social media is allowed.” K.A. v. J.L., supra at 254 (N.J. Super. Ch. 2016). The court ultimately found that after personal service could not be accomplished through diligent efforts, service to the defendant's Facebook account satisfied the fundamentals of due process.

*****
Lynne Strober, a member of this newsletter's Board of Editors, is a Member of Mandelbaum Salsburg, P.C. and chair of its Family Law Department. She is the immediate past President of The Barry Croland Family Law American Inn of Court. Khizar A. Sheikh, also a member of the firm, is chair of its Privacy, Cybersecurity, and Data Law Group. Jennifer Presti is an associate.

Attorneys gather and use information to represent their clients and, increasingly, a significant amount of this information is available via the Internet, including through social media.

In 2013, a larger than before number of the lawyers who responded to the annual ABA Technology Survey reported that they are participating in social media in both their personal and professional lives. The survey results indicate that approximately 80% of lawyers maintain an online presence for professional reasons, and 94% use social media for personal reasons. Law firms and individual lawyers have websites that link to blogs, Twitter and Facebook accounts. The legal profession is employing social media to advertise, and gather information about clients, potential clients, opposing parties, witnesses, jurors and judges. Transactional lawyers are using social media when conducting due diligence. And yes, lawyers are sharing aspects of their personal lives — their opinions, vacation photos, birthday greeting and even their “likes” — with all of their “friends.”

Social media information can be valuable in family law cases. It can be used as a basis to assert claims of cohabitation, challenge custody, address alimony, etc. Often, after a client contacts the family law attorney, and even before meeting, attorneys can learn about a potential client, their spouse and the businesses the potential client and/or spouse owns, through researching on the Internet.

How much of this information is accurate? Can information found on a computer be attached to pleadings in support of the client's position without further verification? Can it be admitted into evidence? How can it be gathered ethically?

This two-part article is divided into three sections: 1) Social media, defined; 2) Examples of how social media has been used in family law cases; and 3) Ethical considerations for attorneys who gather social media evidence.

Social Media

Social media can be defined as “forms of electronic communication (such as websites for social networking and microblogging) through which users create online communities to share information, ideas, personal messages, and other content (such as videos).” See Social Media, Merriam-Webster, http://bit.ly/2fKyxEk.; “Social networking over the Internet has taken the world by storm — revolutionizing the way people communicate by allowing users to publish their private lives on a world stage.” Friend Request or Foe? Confirming the Misuse of Internet and Social Networking Sites by Domestic Violence Perpetrators, 19 Widener L.J. 933 (2010).

This has resulted in key evidence being available on social platforms, not only on the most popular social media sites, such as Facebook, Twitter, and LinkedIn, but also on many others, including:

• Content/Media Sharing, e.g., YouTube and Instagram;
• Activity Tracking, e.g., MapMyRun and Foursquare;
• Blogs and Microblogs;
• Collaboration Sites, e.g., Wikipedia;
• Social News, e.g., Digg, Reddit;
• Discussion Forums; and
• Review Sites, e.g., TripAdvisor and Yelp.

However, a key feature is that much of social media content is accessible publicly, while it is also possible to leave public written messages to other users, but not all. Social media and other digital communication formats are part of a broader category of electronically stored information and share some characteristics with other types of electronically stored information. For example, the private messaging feature of many social media sites is similar to both email and text messaging.

Social Media in Family Law Cases

There has not been a flood of matrimonial cases addressing the use of social media, so there is limited precedent as guidance. This may be due to the facts that many cases are resolved outside of court and that this is a new issue. But, also, many family law practitioners may not be offering to admit social media into evidence. Still, there are some reported family law cases in various states that address this issue. They demonstrate some of the evidentiary hurdles an attorney should be prepared to face when submitting evidence from social networking sites, and also the legal challenges that an attorney should consider when presented with objectionable or potentially fraudulent social media evidence from his/her adversary.

Collectively, social media evidence seems to be admissible if there is proper authentication. However, attorneys have the ability to challenge the admission of social media if there is doubt about the authenticity of the records being presented by the other party. Fed. R. Evid. 901(a). Note that the U.S. Court of Appeals for the Third Circuit recently held that social media communications are self-authenticating as “business records.” See U.S. v. Browne , 834 F.3d 403 (3d Cir. 2016).

A glaring example of how social media can be used in custody matters is the case of Dexter v. Dexter, decided by the Court of Appeals of Ohio. 2007 -Ohio- 2568, ¶ 1, 2007 WL 1532084, at *1 (Ohio App. 11 Dist. 2007). The mother there stated “both in her testimony and through her writings in on-line [sic] blogs, that she practiced sado-masochism, was a bisexual and a pagan.” Id. at *6. The mother challenged the admissibility of this evidence. Ibid. See also J.N. v. D.R.M., No. CN07-01654, 2008 Del. Fam. Ct. LEXIS 62, at *17 (Del. Fam. Ct. Jan. 29, 2008) (relying heavily on photos posted on MySpace that highlighted a mother's drinking habits in a decision to deny the mother sole custody). Dexter, supra at *6 (Ohio App. 11 Dist. 2007). With respect to the evidentiary hurdles in Dexter, the mother admitted in court that she wrote the online blogs on her MySpace account, and that those writings were open to the public to view. Thus, the Court of Appeals of Ohio found that she could hardly claim an expectation of privacy regarding the writings.

In Shaw v. Young , 199 So.3d 1180 (La. App. 4 Cir. 2016), a case in which the husband sent electronic messages to the wife and posted negative things about her online, the Court of Appeals of Louisiana held that the “husband's repeated emails and text messages to his wife and his repeated postings on his social media account about her constituted cyber stalking … qualified as domestic abuse and thus supported the issuance of a permanent Protective Order.” The wife testified that her husband posted messages on Facebook about her immigration status. She also said that he released private photographs of her to others and sent messages to her friends saying “bad things” about her — messages that the friends then forwarded on to her.

The Court of Appeals of Louisiana found that these messages, “whether they were e-mails, text messages, or even letters — constitute a repeated pattern of verbal communications or nonverbal behavior without invitation that would cause a reasonable person to feel alarmed or to suffer emotional distress.” Shaw v. Young , 199 So.3d 1180, 1187 (internal quotations omitted). The applicable Louisiana statute specifically includes cyber stalking and a definition of electronic communications. Id. The court further found that the Facebook pages in question were public, and while Facebook users can restrict access, individuals that were not the husband's friends were getting contacted, and he had not utilized any privacy settings.

In a recent Florida District Court of Appeals decision, dated June 24, 2016, the court admitted into evidence various postings on social media with regard to an application made by the former husband seeking to reduce or terminate alimony due to the ex-wife's cohabitation. Martin v. Robbins , 194 So.3d 563 (Fla. App. 5 Dist. 2016). Photographs of the former wife and her paramour's elaborate wedding ceremony were entered into evidence, along with numerous postings on social media indicating that the former wife and her paramour were in a loving, romantic relationship.

In Irions v. Holt , 156 So.3d 956, 961 (Ala. Civ. App. 2014), the Alabama Court of Civil Appeals ruled in a custody matter in which social media posts made by the father were entered into evidence by the mother. The father admitted that the posts were in “poor taste.” The mother further presented evidence that the daughter followed the father's social media. However, the Alabama Court of Civil Appeals found that there was no evidence indicating that the daughter had actually viewed the allegedly inappropriate posts. So, while the social media posts were admitted into evidence, and authenticated by the parties' testimony, the weight of the posts was overcome by the fact that there was no evidentiary proof provided that the daughter had in fact observed what had been posted.

In K.A. v. J.L. , 450 N.J. Super. 247 (N.J. Super. Ch. 2016), the New Jersey Superior Court, Chancery Division, Morris County, addressed the use of social media to effect substituted service of process. In K.A., adoptive parents filed an application seeking to enjoin the alleged biological father from holding himself out as the biological father of their adopted son, from contacting the adoptive parents, and to compel him to remove information pertaining to their son that he published online. The court held that service of process through the social media platform of Facebook, after the parties had unsuccessfully tried to serve the alleged biological father through certified mail, would be permitted by the Superior Court of New Jersey. The court reviewed the the issue by asking the following questions in order to establish that service by Facebook was proper:

• Could the defendant be served by conventional means, those specifically permitted by court rule?;
• Was the relief sought appropriate for service by publication?; and
• Would service by Facebook still protect the defendant's due process rights?

The New Jersey Superior Court found that it was demonstrated that the alleged biological father had his own Facebook account and that, therefore, there was a substantial likelihood that he would receive the complaint and order to show cause. The alleged biological father further appeared telephonically at the hearing, thus establishing that he was served. However, the New Jersey Superior Court found that “such confirmation need not always be present given the facts of a particular case if there is sufficient evidence that the Facebook account was the defendant's.” K.A. v. J.L., supra at 254.

The decision was limited to the specific facts of the case, and the court noted that “there is a split among courts on whether service by social media is allowed.” K.A. v. J.L., supra at 254 (N.J. Super. Ch. 2016). The court ultimately found that after personal service could not be accomplished through diligent efforts, service to the defendant's Facebook account satisfied the fundamentals of due process.

*****
Lynne Strober, a member of this newsletter's Board of Editors, is a Member of Mandelbaum Salsburg, P.C. and chair of its Family Law Department. She is the immediate past President of The Barry Croland Family Law American Inn of Court. Khizar A. Sheikh, also a member of the firm, is chair of its Privacy, Cybersecurity, and Data Law Group. Jennifer Presti is an associate.