August 2011 - Social Media Caveat
by Elizabeth Pyo
Several years after Thom and Lorna’s divorce had become final, the real estate market plunged leaving Thom unable to fully fund Lorna’s ordered support. During marriage, Lorna had been the stay-at-home parent even after the children had grown and her spousal support was a reflection of her apparent lack of skills and lengthy time away from the job market. Thom knew nothing of her current financial status and was anxious about his ability to obtain a support modification. Or course, Lorna’s attorney suggested not. Thom’s attorneys, however, were undeterred. Enter Google. Lorna’s fiscal life had flourished: she had honed entrepreneurial skills in a design firm and blogged of her success—directing viewers to a website and Facebook page. With one link, Lorna posts of her business acumen, live-in boyfriend, and favorite travel locales—all delightful evidence to downwardly modify support or eliminate it altogether.
“Aha!” you think. “Good for Thom!” The problem: Lorna is your client.
For those who are looking to reconnect with old loves, high school buddies, or just routinely stay connected to current friends and family, social-networking sites can be a goldmine for immediate information dissemination. You can post life stats, be in continual chats with “friends,” load photos and “tag” each of the persons framed. You can look for new mates on dotcom e-dating networks, showcase your career profile on professional sites, and even play interactive on-line games—that continually update your date-and-time-stamped progress to other “friends” and, you can Tweet away, minute by minute, stats of your day or follow your favorite Twitterer. All fun and interesting information. But, with one quick switch to the investigative legal eye, the gold can turn to dust becoming a landmine for its author. What other e-site injuries might occur?
- Mom forgets to “de-friend” Dad on Facebook while posting vacation photos of the kids . . . outside of the state to which the children have been restrained.
- Out-of-state Dad forces son to de-friend Mom, bolstering her claim that he is thwarting the child’s best interest of continuing and frequent contact.
- Dad goes on Match.com and declares his single, childless status while seeking primary custody of those non-existent kids.
- Husband denies anger management issues but posts on Facebook in his “write something about yourself section” section: “If you have the (*&*&^%) to get in my face, I’ll kick your (*&^%$#@#) into submission.” (Expletives deleted.)
- Dad seeks custody of the kids, claiming (among other things) that his ex-wife never attends the events of their young ones. Dad isn’t fabricating. Subpoenaed evidence from the gaming site World of Warcraft tracks Mom there with her boyfriend at the precise time she was supposed to be out with the children. Mom loves Facebook’s Farmville, too . . . at all the wrong times (remember the date and time stamping mechanisms of the on-line games).
- Custody embroiled Mom denies in court that she smokes marijuana but posts partying, pot-smoking photos of herself on Facebook.
- Husband claims to be unemployed to receive temporary support. But, on his Facebook page, he identifies himself as a business owner and describes vacations to exotic destinations with his new girlfriend.
- Another Dad in the midst of a divorce claimed he couldn’t afford child support. Yet his Facebook profile showed him sitting in a Ferrari, taking a cruise, and selling a piece of property he owned.
Tips to Client and What to Do as Practitioners
So, what should practitioners do? Go on the defensive—as well as offensive—in social-media mode. When representing the Thoms and Lornas, the standard of care has quickly become a routine Internet search on all opposing parties. But, don’t forget to investigate your own client. Let Lorna know how social networking sites can be used to her detriment and have her swear off social networking sites until the legal issues are resolved: freeze the accounts or cancel them. Because–as it has become so clear–what is posted and shared on Facebook or other social networks may very well become easy public view. Although Lorna may have the impression that she retains control over what she posts, it appears—as a practical matter—she has no rein over what others might do with her information, posting it on Facebook or elsewhere. And, even if Lorna deletes the goodies from her page, there is nothing she can do to prevent further airing by others who have received it. Once shared via social networks, there can be no way of knowing where or when an item will appear on the Web. Think Charlotte’s.
Procedurally–How to Get the Evidence In
Ok, you’ve culled the Web and your sleuthing has been fruitful. You have blogs, emails, Internet postings, photographs, progress reports, life stats, Farmville movement, e-Harmony ads, —and now you want to share it with the Judge. But, is your information admissible? Fortunately—or unfortunately for Lorna as it may be—California enacted new discovery statutes for e-information that mirror the Federal Rules.
California’s Electronic Discovery Act went into effect on June 29, 2009, when Governor Schwarzenegger signed into law Assembly Bill 5, also known as the Electronic Discovery Act. The Act amends and adds to the CCP to provide a series of procedures for a litigant to discover or object to discovery of Electronically Stored Infomration (ESI), building on already existing conventional discovery procedures. Specifically, CCP §1985.8 was added which states that a subpoena in a civil proceeding may require ESI be produced. CCP §2016.020 was amended to read “‘electronic’ means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.” Section 2031 et seq. was amended to read to add that ESI is discoverable in RFPs.
These codes enable us to formally obtain “ESI” where computer pecking might come up dry. And—for admissibility—although California has no current case on point to address the evidentiary aspects, the U.S. District Courts do. Judge Grimm’s instructions in Lorraine v. Markel American Ins Co., 241 F.R.D. 534 (2007) walk us through five queries to admissibility: Is it relevant? Can it be authenticated? If offered for it’s truth, is there a hearsay exception? Can you access the original or will secondary evidence suffice? And, is it too prejudicial when weighed against its probative value? Judge Grimm indicated that no one was throwing out the evidence rules when looking to admit ESI, only using a bit more creativity and scrutiny. And, although Judge Grimm was addressing federal law, the rules easily correspond with California’s Evidence Code. We simply use the rules we have.
First, as to relevance. Partying parents, moneyed pictures of the alleged poor, venting bloggers . . . the relevance of social-networking sites in Family Law will—more often than not—go without saying. Even still, photos of an extramarital affair would not pass muster on their face in California, but if used to show lavish spending (where poverty is claimed) or Mom in a place at a time where she previously declared she was with the kids, the images may have more probative value.
Second, we must authenticate the exhibit—we must show that it’s “for real.” We only need make a prima facie showing that the information (document, picture, blog writing) is what it has been claimed to be. Of course, we can hire the IT expert to explain the computer’s information accuracy. But sometimes the easier route would be authentication by lay witnesses: Lorna’s friend who was sitting with her at the computer; another “friend” who received the responsive writings, or Lorna herself. Certainly, pictures can be authenticated by folks who can identify those in the photo. Or, we can simply elicit testimony from the person who searched the web, stating how and when the web page was copied and attesting to its accuracy. What about falsified/manufactured evidence?
Third, we check for hearsay. Is it offered for its truth, i.e. the time stamp, the blog where Mom writes she was in Fiji? If so, is there an applicable exception? The obvious exception is the Party Admission. But, in murkier cases, does it show the author’s state of mind—as in the angered threat to kick someone’s toosh? Or, is it a prior inconsistent statement of a witness that can be used to impeach? Probably so.
The fourth query is whether the copy of the Facebook page can rally under California’s Secondary Evidence Rule. The easy answer is “yes.” Under this statutory scheme, the content of a writing can be proved in three ways, one of which is by having the original. For data stored in a computer, the “original” includes any printout or other output that accurately reflects the data. CA Evidence Code §255. So unless we are trying to introduce official records, California’s evidence code presumes that computer printouts are accurate depictions of the information they purport. CA Evidence Code §1552.
And finally, the last question is whether the probative value of the information is outweighed by undue time, prejudice or confiscation of the issues—California’s Evidence Code §352. Because our Family Law matters are heard by a judge and not a jury, the potentially prejudicial “gory” photographs would not be problematic. Likewise, introducing a Facebook photo or blog statement would be far more time efficient than trying to elicit similar testimony from a live witness. Not much of a hurdle there.
Social Networking sites are amazing vehicles for information compilation. An old friend shares his daughter’s success on “going to Hollywood” for American Idol, the High School reunion crew is sending out blasts to have everyone get ready for the 30th, Birthday wishes are posted on various walls, pictures from last night’s party are posted and “tagged,” Baby shower invitations are being prepared and sent, High School Graduation videos are up for view, Links to the hottest Time’s article are being shared, and “friends” are clamoring to get current photographs. So many things to lure us in. I haven’t loaded on. Have you?
Elizabeth Pyo, of Phillips Whisnant Gazin & Gorczyca LLP, is Paralegal to Gerald J. Phillips and Gary S. Gorczyca, in Newport Beach. Contact: firstname.lastname@example.org, www.pwgglaw.com.
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