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The New and Growing Use of Social Media in Litigation

Keeping information private, whether from the Government, advertisers or employers, has become an increasingly difficult task, and the ever-increasing prevalence of social media (e.g., Facebook, Twitter, Instagram, LinkedIn, etc.) has led to unforeseen outcomes for many litigants.

In the family law context social media have become significant weapons in child custody battles. For example, the admission of Facebook posts into evidence is blurring the lines between what courts once considered hearsay and what they now deem to be admissible evidence.  Recently, and for the first time in New York, a Westchester Judge allowed the father in a child custody case to demonstrate the mother’s absences through her Facebook posts on the ground that “the time spent by the parties with the child may be relevant and material to its ultimate determination of custody.”[1]

It is axiomatic that in making a custody determination courts consider the best interests of the child and try to discern which parent is best suited to care for the child. As a result, where social media posts highlighting a parent’s social drinking with friends may seem innocuous at first, such posts can become potent weapons in the courtroom.  Moreover, even if a user limits the spread of such information by adjusting the privacy settings within his/her profile, the posts can nevertheless be accessible during discovery in any litigation See Largent v. Reed, Pennsylvania Court of Common Pleas, 39th Judicial District, 2009, where the trial court held that “[w]hen a user communicates on Facebook, her posts may be shared with strangers, and making a Facebook profile “private” does not shield it from discovery”).

The use of social media is even more prevalent in divorce cases than it is in child custody contests. According to a 2010 study by the American Academy of Matrimonial Lawyers, “Facebook holds the distinction of being the unrivaled leader for online divorce evidence with 66% [of lawyers] citing it as the primary source.”[2]

Our own firm has successfully used Facebook posts and photographs as evidence in various matrimonial matters. For example, we used a spouse’ posts regarding recent recreational and athletic activities to show that he was in good enough health to provide financial support for our client despite his claims to the contrary.  We have also been able to use photographs posted on Facebook to prove the existence of certain previously undisclosed assets subject to equitable distribution between our client and a less-than-forthright spouse.

Apparently, too, the use of social media in litigation is not strictly limited to its role as evidence. In fact, a Manhattan Supreme Court Justice granted permission to a wife in a divorce matter to serve a summons upon her estranged husband through a private message using Facebook Messenger.[3]  This, then, is a potent new weapon against individuals attempting to avoid service of process.  If courts are now allowing the use of Facebook for a procedure as formal as the service of process, then we can only expect a continued expansion of the use of social media in litigation. Clearly, then, it is newly and extremely important for attorneys to be fluent in the various social media websites and applications, and clients must understand that anything they post online may become fair game in court.