-By Nedda Ghandi, Esq.
A party’s online activities can be the divorce attorney’s best asset or worst nightmare. Going through a divorce or custody battle has always been emotionally difficult, but the parties have not always had social media available to broadcast their frustrations to the world. People tend to be more impulsive during times of personal crisis, and for better or worse, this lack of discretion may now include posting emotionally charged updates via social media. And evidence obtained from social media evidence can have a substantial impact on a divorce or custody case.
According to USA Today, 78 percent of the U.S. population uses some form of social media. Whether it is Facebook, Twitter, Instagram, Snapchat, YouTube, or Tumblr, social media can create a virtual trail of all who use it, from where they go and who they spend time with, to their upcoming adventures and new possessions. While a user may see social media as a source of comfort during a stressful time or as a way to fulfill his or her need for socialization, communication, empathy, or love, a divorce attorney views social media as a potential trap sprung by the user’s own hand—an easy way for a client to unwittingly hand compromising information to the opposing side. On the other hand, a divorce attorney also sees social media as a possible bounty of ways to expose the lies of the opposing party through their discoverable online activity.
In a 2010 survey by the American Academy of Matrimonial Lawyers, 81 percent of divorce attorneys reported seeing an increase in the use of social media evidence in divorce litigation. The use of social media and the number of available platforms have only increased over the last several years, and the family lawyer must be increasingly vigilant as to the many pitfalls and treasure troves that await.
Unfortunately, many users of social media operate under the incorrect assumption that what they post is “private.” It must be remembered that anything posted “privately” can be re-posted or sent to anyone else in the world, by any of the designated “friends” who received the “private” message in the first instance. Often, divorce and custody clients are surprised to learn that their social media pages, including their “private” communications, as well as anything that had previously been deleted, can be accessed and used against them in court. In practice, social media evidence is typically more harmful than helpful to the posting client in divorce and custody cases, and clients should generally be quickly advised to stop posting on any social media platforms, if not deactivate their accounts for the duration of the litigation.
Courts have generally held that social media evidence falls under the duty to preserve, which requires parties to cease any alteration or destruction of evidence that is found relevant to pending litigation. Information posted to social media websites is not privileged information, making it potentially discoverable in a court of law. Moreover, there exists no reasonable expectation of privacy for anything posted to the Internet, despite the user’s privacy settings. In Rosario v. Clark County School District, 2013 WL 3679375 (D. Nev. July 3, 2013), the court held that users who have their privacy settings set to “public” have the intent to allow anyone on the Internet to view their posts, and therefore can have no expectation of privacy. Moreover, users who have their profiles set to “private” may share their posts with a smaller audience, but users have no control over what their friends re-post or share or discuss amongst themselves, therefore cannot expect to keep their information truly private. Thus, there is no expectation of privacy and no Fourth Amendment protection.
Facebook, the current leader among the social media outlets, is often the vector providing incriminating evidence produced during discovery. Many users are unaware that every piece of information ever shared on their profiles, even posts and pictures that are deleted, is archived and may be discoverable by the opposing side. Thus, when a party’s Facebook profile information is obtained during discovery, the entirety of the user’s history is downloaded. For example, a party’s status update viciously castigating the ex that was posted in the heat of the moment and deleted only minutes after it was posted can resurface and inflict damage to the case. If that isn’t enough heat, Facebook administrators hold that even deactivated and deleted accounts can be recovered upon proper request from law enforcement or recognized legal process.1 Information a user may have believed would never be seen again can re-emerge and inflict irreparable harm to a case. Twitter and Instagram administrators have the similar abilities to produce vast amounts of information from a user’s profile, and deleted information is preserved for roughly 90 days.
Think about that: Every status update, every picture, every message, anything that was ever posted to a Facebook profile either by the user, or a friend of the user, can be recovered and disclosed during litigation. In connection with that sobering thought, the current technology in smartphones, computers and tablets allows for a person’s location to be published with a status update or picture, showing where the person was when the update was posted.
A common example involves a party that states he or she does not have income but yet shows a lavish lifestyle on their social media channel–showing purchases of designer items, extravagant vacations, new cars and the like. One particular case dealt with a business being valued and split, with the husband being in control of the business. The husband claimed he did not have income at all, in fact he was negative each month and having to take out loans and borrow from family to survive. However, social media painted a completely different picture, including his own admissions of being on dating websites, where he was claiming to be millionaire, having signed up for a millionaire dating website.
If there is any information on the dating profile that is contrary to what has been presented in a case, a client like the husband could potentially be held liable for perjury. Overall, social media sites should be completely avoided during the divorce or custody process, because it often does and can come into the case to be used against the party participating in social media posts.
What is the solution to this? The divorce attorney should immediately instruct the client to deactivate, but not delete, all of their social media accounts, even those that are not often used. Many attorneys are now adding social media clauses to their retainer agreements, requiring clients to sign an agreement stating they will not use social media in any way during the entirety of their case. At the very least, it must be emphasized to the client that it is important to not post about personal matters on social media, even if it seems harmless, and that nothing posted online is ever truly “private.” Just like the golden rule of “think before you speak,” it is important to think twice—maybe even three times before posting a status update—asking yourself, “If a judge were to see this post, how would it affect my client’s case?” A divorce judge’s perception of a case can of course be affected by evidence showing one party living a lavish lifestyle, going on five-star vacations to exotic locales and purchasing luxury vehicles, while the other party in the case is struggling to make ends meet. Even if a client cannot see the harm, they must be convinced, or even commanded, that it is in their best interest to refrain from using social media during the pendency of a divorce case.
Nedda Ghandi, Esq. is the founding partner of Ghandi Deeter Blackham Law Offices. A Nevada native, Ghandi is a graduate of the University of Nevada, Las Vegas William S. Boyd School of Law and has practiced law in Las Vegas for 9 years. Ghandi has written numerous articles for publication concerning interesting developments in the law, and has been selected as a member of Nevada’s Legal Elite and as a Super Lawyer every year since 2013. Ghandi Deeter Blackham specializes in family law, bankruptcy, guardianship, and probate. Consultations may be scheduled by calling 702.878.1115 or visiting www.ghandilaw.com.
1 Facebook’s policy is to decline responding to civil subpoenas, although it will respond to requests authorized by the Facebook account holder. An attorney may seek to compel the account holder to provide such authorization to Facebook in discovery.