Social media and the Internet continue to be a troubling topic in litigation. This technology in family law matters is dangerous because the opposing party and lawyers are scouring the Internet looking for evidence which can help them − and hurt you. Social media and the Internet have become a goldmine because many people enjoy posting their every move into the public sphere, which includes even those “private” pages on Facebook. You must assume your opposition has or will gain access to this information.
The Legal Problem
The mere shutting down of those social media pages and removing information from the Internet has raised the question in the legal community as to whether or not this can rise to the level of the destruction of evidence, which not only might bring sanctions under the Discovery Act, but might be a federal crime.
In the most basic form, spoliation of evidence is defined as the negligent or intentional withdrawal, hiding, altering or destruction of evidence. While it remains unclear if the withdrawal, hiding, altering or destruction of social media pages can give rise to a spoliation of evidence claim, it is best to assume it will. This means that steps must be taken to preserve the social media evidence.
Only You Have the Evidence
No longer is it acceptable to simply take down, withdraw, alter or otherwise change social media postings or other items on the Internet which might be relevant to ongoing or anticipated litigation. Rather, you must ensure the preservation of the evidence before taking such steps. Therefore, while it is acceptable (and advisable) to no longer post to those social media sites when litigation is ongoing or anticipated, the information cannot be destroyed. Not only can it not be destroyed, the original social media postings must be preserved. The reason is because social media websites will not provide this information in response to a subpoena, given that federal law prohibits social media websites from disclosing user content to any non-governmental entity. Therefore, because the creator of the social media content may be the only source from which to obtain the information in discovery, the burden lies on the creator to preserve the evidence.
For all these reasons, at the beginning of a family law case (or any litigation), all clients should print and save a screen shot of any relevant information and also copy the electronic version of the information to another server for preservation before deleting it from cyberspace. Because issues could arise about the authenticity and success of preservation, it is best to discuss the steps to preserve this type of evidence with your lawyer before withdrawing, altering or otherwise changing your existing social media.