This past week the news reported the story of a judge in Connecticut who ordered both parties in a child custody dispute to give each other their Facebook passwords.  The judge made this order so they each could look for evidence to support their custody cases.  In the judge’s defense and for the parties’ protection, he told the parties not to pose as each other on their respective Facebook pages.  Really?

Is Anything Really Private?

The Connecticut judge’s order to turn over the entire profile wholesale to the other party raises serious questions of privacy (is there a reasonable expectation of privacy in social networking?), relevance of the material contained on the site (the right to conduct discovery), violations of Facebook’s policy not to turn over password information to others, and possible violations of the Stored Communications Act.

While I have been unable to find reported cases on use of social media sites for discovery in family law, there is a lot of activity in other areas of the law which addresses these issues.  The answers are certainly applicable to family law – an area of the law where parties tend to be emotional, vocal and often vengeful.

I have blogged before about the dangers of continuing to use social media during a divorce, but it is now more than mere use and posting to public walls which is dangerous.  Courts around the country are not just authorizing discovery of what is publicly posted, but also are allowing access into the private areas of social media sites and to the items deleted from these sites.

What Courts Are Saying

Courts are struggling with developing rules and laws concerning the discovery of information contained in technological formats such as social media.  The courts seem to agree that there is no reasonable expectation of privacy in public postings.   Although these posts are semi-public, this does not mean everyone actually has access – they frequently must be a “friend” to access the public postings.  But, just because information is publicly posted, is it so relevant to the litigation that opposing counsel or the opposing party should be able to read the public posting?  One judge solved this by ordering a party to “friend” the court.  The court was then able to privately review (in camera, to use the legal term) the postings, determine what was relevant and order the relevant portions of the posting produced to the other side.

What about non-public postings?  Well, a New York judge allowed access to non-public posts on Facebook and Myspace and also allowed access to historical pages, including all deleted pages.  This means there may not be a meaningful “undo” because the information remains discoverable for the duration of the social media site’s retention policy.

Questions, Questions, Questions

Does this mean parties should start deleting their posts and accounts? Don’t forget, the deletion may be meaningless if the information is retained by the social media site.  Also, if deletion is done during the time an action is pending, there is a question of spoliation (destruction) of evidence, which is illegal.

We simply do not know if parties are always going to be allowed access to the other party’s social media site.  One would expect tests to emerge that would balance the need (relevance) of the information against privacy issues, the policies of the social media site and the Stored Communications Act.

I am sure many more issues and concerns can be raised concerning this brave new world.

The Lesson

The lesson is to understand that social media is fertile ground for discovery during litigation.  Make sure whatever you say on these sites – if you insist on using them – is what you are comfortable with the whole world knowing.  It is not just in family law cases where social media is interesting to your opposition – it has the same degree of interest to your opposition in civil cases, police investigations (as in the ability to obtain warrants) and criminal cases, too.