Can you subpoena facebook messages in divorce?

Can you subpoena facebook messages in divorce?

The short answer is Yes. But first ask yourself the following questions:

  1. Is the information I am seeking relevant to the matter at hand? If the information is not relevant, than the Court is not likely to allow a fishing expedition. You have to show that the requested information is “reasonably calculated to lead to the discovery of admissible information.”
  2. Can I obtain the information any other way than a subpoena to facebook? As the FBI is learning, technology companies are not always friendly in spite of a court order requiring them to produce the information. To that end, if you can obtain the information by a Court order requiring the other party to produce all messages exchanged between Mr. Jones and Ms. Smith between July 2013 and June 2016, it may be an easier way to get what you’re looking for. Take the other side’s deposition and see if they will swear that there are no other messages other than those that have been produced. If you’re still doubtful about it, then subpoena Facebook and get a Court order requiring the production of only a narrow set of data (i.e. specific as to recipients and dates and times).
  3. Is there anything on my facebook or social media pages that may be problematic? The Court is likely to allow the opposing party to discover the same type of information related to your social media so be careful what you ask for.

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The world has seen an unprecedented increase in the use of technology within the last few decades. The internet, which was once a unique business commodity, has evolved into a personal necessity. Today almost anyone can go online through a computer, tablet or handheld device. One result of this universal access is the popular use of social media platforms such as Facebook, Twitter and Instagram. However, these technological changes have not gone unnoticed by the law. In recent years, courts have increased the use of social media as evidence – especially in family law. Clients come in to our Tallahassee family law firm regularly and bring photographs pulled off their spouse’s social media page.

According to a recent study by the Pew Research Center, 71% of adults who go online are using social media. Naturally, this statistic opens the door for courts to consider evidence available through different online platforms. As Tallahassee divorce lawyers know, Courts must assess a wide range of evidence before ruling on matters such as child custody, alimony and child support. For example, consider child custody. Below are two of the statutory factors that are often difficult to accurately assess when establishing or modifying child custody:

  • The demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent.
  • The moral fitness of the parents.

As you can imagine, providing evidence for the factors above can quickly turn into a “he said, she said” argument if both separated parents wish to have custody of a child. However, social media evidence is viable option to give courts a truthful glimpse at the lifestyle choices of each parent.

The American Journal of Family Law cited a case in 2011, Lalonde v. Lalonde, as an example for which social media influenced the ruling of a court. In this case, physical custody of the child was granted to the husband because the husband provided the courts with several pictures of his ex-spouse at various parties consuming alcoholic beverages. The wife was not posting these pictures herself, in fact her friends had been tagging her without her knowledge, yet the evidence was still admissible and served as a premise for the court’s decision. We have litigated cases against other divorce lawyers in Tallahassee where the opposing party was able to present convincing evidence regarding adultery, drug abuse, and child neglect from evidence gleaned from Facebook.

Additionally, evidence obtained from dating websites is also being used by divorce attorneys across the United States. In a survey conducted by the American Academy of Matrimonial Lawyers, 64% say they have cited as a source of evidence during divorce cases. The same statistics are likely true in Tallahassee divorce cases. Evidence obtained from these websites is often used to show the truthfulness or a lack there of on behalf of another spouse. At the very least, a spouse indicating that he/she is single rather than married can be used to show a lack of truthfulness.

Arguments against the admissibility of social media evidence are usually founded on the claim that it is an invasion of privacy. However, because social media use is voluntary and users are aware of the fact that they are sharing information with multiple people, courts consistently rule that there is no “reasonable expectation of privacy” with respect to social media postings. In effect, social media evidence is becoming a reliable evidentiary tool in litigation. Before coming to meet with our Tallahassee divorce lawyers at Liebenhaut | Hesser, review your social media pages (both public and private) to be sure you know what the opposing party may be submitting as evidence against you in your case.