My Mother used to say, “If you don’t want it read, don’t write it down.” If only she’d known how applicable those words would become in the age of social media and technology. Turns out the only thing more embarrassing than having a teacher read your note aloud in front of the class, is having an old tweet resurface from 5 years ago that you’re not particularly proud of now that you are older and wiser.
In the past year, we’ve seen tweets printed on signs and brought as displays to the floor of Congress. We’ve also seen companies pull their advertising from platforms due to an errant post online by a celebrity or newsperson. You may be thinking, “But all these people are essentially famous, what does any of this have to do with me and MY legal case?” Well, what you might not realize is that if you are in the middle of a legal battle, all of your text messages, emails, and social media records can be subpoenaed to court.
Most people know that what they post publicly can be used for any purpose, but what they may not realize is that this includes your private messages. Think you are hiding by using apps like Facebook Messenger, WhatsApp, Signal, iMessage? If you are in litigation, and opposing counsel is paying attention, then think again.
If you find yourself tied up in litigation, your attorney or the opposing party’s attorney, may make what is known as a Discovery Request of your online accounts. Generally speaking, these requests could look like this: “For each Facebook account maintained by you, produce all account data for the period of January 1, 2012 through the date you respond to this request.” And, just in case you weren’t sure how to do it, some attorneys will give you specific instructions such as, “You may download and save (or print) your Facebook data by logging into your Facebook account, selecting “Account Setting” under the “General” tab, clicking the “Download a copy of your Facebook data” link, and following the directions after selecting “Start my Archive”. This request specifically includes all postings on your “Wall” (including comments by your ‘friends’ or yourself or any such postings) and such postings should be downloaded and saved or printed to be produced in response to this request.” Need more information? Instructions for downloading your Facebook data can be found in Facebook’s Help Center.
If your first instinct is to delete old messages, or posts, from your social media accounts – PROCEED WITH CAUTION! Deleting data may be considered “spoliation” of evidence and could get you in even bigger trouble with the courts. At Sodoma Law, if there is a concern, at the onset of the case, we typically inform our opposing parties of this warning by issuing a Spoliation Statement that reads: “It is understood that litigation will be required if this matter cannot be resolved by mutual agreement. Please consider this correspondence as a litigation hold letter which requests that you preserve any and all documents and things that could be relevant in this matter or that could lead to the discovery of other relevant information. You are under a legal duty to maintain, preserve, retain, protect, and not destroy any and all documents and data, both electronic and hard copy which might impact the subject matter of claims subject to litigation. The failure to preserve and retain this information (whether or electronic or otherwise) constitutes spoliation of evidence which may subject you to civil and criminal penalties. Such information includes but is not limited to correspondence, social media content, phone and text records and content, e-mails, chat transcripts, photos, internet and browser history, electronic profiles, videos, receipts, notes, calendars, recordings, travel records, documentation of payments, and/or any other documents and things which may have any bearing on the possible subject matter of litigation.”
Whether you are filing for bankruptcy, going through a custody battle, or sorting out an estate plan, what you say online could affect your case and even have serious unintended legal consequences. It’s why I always remind people, “If you don’t want it read, don’t write it down.” My mother would be proud.
To learn more about how social media could affect your family law case, read our two-part blog series from Attorney Robin Lalley.