A CLE program titled “War of the Roses in the Digital Age,” put on last month in Greensboro, included the presentation of a fake Facebook page that surprised attendees with its breadth of information and authentic feel. Family lawyer Ketan Soni had asked an attorney who would be at the seminar for permission to impersonate her virtually, using only information found online. Soni, who practices with Hull & Chandler in Charlotte, said the exercise illustrated how vulnerable clients’ virtual identities are to spouses with bad intentions.
“Quite frankly, when you’re talking about divorce, you get spouses that don’t behave,” he says. When people have a little tech know-how and too much time on their hands, they can create serious mischief.
The CLE, planned by the N.C. Bar Association’s Family Law Section, is among growing efforts to bring the family bar up to speed on issues related to social media and electronically stored information. ESI is a realm that’s changing the game for lawyers across the spectrum, but family lawyers are navigating some particularly gray areas. Widespread reliance on sites like Facebook and Twitter and the prevalence of texting for personal communication have created vast stores of records that are potentially useful to domestic cases.
A presentation to the ABA’s Section of Litigation this summer estimated that 70 percent of the U.S. population uses social media, with 50 percent using Facebook. Case law regarding the admission and discoverability of ESI is most often being made on the federal level, which can make the rules an awkward fit for district court, where resources are scarce and time is short. The pace of change exacerbates the problem as well.
“It’s very difficult for lawyers, in general, and judges to keep up with the rapidly changing world of tech, especially family lawyers, and it’s crucial because ESI is a treasure trove,” says Melissa Brown, a Charleston, S.C.-based family lawyer who co-chaired an annual CLE seminar in Columbia, S.C. last month titled “Hot Tips from the Coolest Domestic Law Practitioners.” Brown also chairs a technology committee of the American Academy of Matrimonial Lawyers. She has raised questions on the national level about whether evidentiary rules established for civil litigation involving corporations and multimillion-dollar awards are appropriate to apply in state-level domestic court. Clients involved in divorces and custody battles seldom have the resources to invest in the kind of discovery that corporate clients do, she says.
“Couples are not Enron,” Brown said. “Couples cannot afford that. There has to be a balancing of interests here.”
Soni says he has been involved in cases in which he believes falsified social media evidence was presented, but has never proven so. Validating the exchanges by comparing them against phone company records requires time and money. He says he thinks that domestic courts spend little time on the issue in part because they aren’t aware of how easy it is to manipulate the evidence.
The “War of the Roses” CLE seminar offered other examples. In one, two slides showed two versions of a hypothetical IM exchange between a pair of spouses. One version included just one side of the conversation. The spouse appeared irrational, demanding to see the children and threatening to call the police. The other slide included both sides of the conversation, including the antagonistic responses that fueled the exchange. Soni says it’s easy to delete messages from an IM exchange and print out the altered versions. Often judges accept the printouts as evidence without further scrutiny.
Shawn L. Reeves is a Columbia, S.C. attorney who has been practicing family law for about seven years. He says he most often sees electronic evidence at the initial stages of a divorce case, when a client comes in with a printout of a spouse’s Facebook post or an online dating site. Printouts of those electronic postings attached to an affidavit often enter the court record in temporary hearings, he says.
“I use it and other attorneys I’ve seen use it,” Reeves says. “There’s plenty of that, and more and more of it … I’ve never had a judge zero in on it or comment on it.”
He says that social media evidence is usually just one part of the larger case, accompanied by evidence found during further investigation.
“If you’re only relying on social media evidence it wouldn’t be a strong case,” he said.
While some areas are gray, most family lawyers know one golden rule: Don’t delete. Destruction of social media evidence has proved costly and damaging for lawyers and clients.
But Brown says it can be burdensome for clients to hold onto their personal electronic communications, and questions remain about when the information becomes relevant. If a client who is not happily married but is not yet seeking a divorce comes to her for advice, when does it become her duty to advise that client against deleting electronic evidence?
She said most family court judges are sensitive to the realities of what people can afford and the time they themselves can devote to each case.
“It’s so new, it’s so novel, we’re just grasping Facebook evidence and how someone authenticates a Facebook entry and goes on to have it admitted it into evidence,” Brown said. “It’s not that they’re not savvy. It’s that it’s overwhelming.”
The other rule family law attorneys offer their clients: Stop living your virtual life. Don’t text. Don’t post to Facebook. Soni says this advice can be tough for clients to follow because many of them derive so much support from their online communities. But people going through a divorce don’t always have the emotional wherewithal to act in their best interest, he says. A remark typed in anger can last forever, he said. Instead of Facebook, pick up the phone, meet with people in person.
“I represent really wonderful people who are going through one of the worst times of their lives,” Brown says. “They’re good people and they are going through something terrible. We are supposed to help save them from themselves.”
Follow Amber Nimocks on Twitter @NCLWTechTalk