Obtaining Evidence from Social Networking Sites

Last month, we discussed some of the legal and ethical issues surrounding access to and use of information available through social networking media. In New York, thanks to a 2010 New York State Bar ethics opinion, attorneys may be confident that the State Bar will consider their behavior ethical if they access information made available to the public, even without permission. However, if the attorney (or his or her agent) uses trickery to gain access to data that the owner allows only certain people to see, the ethical line will be crossed. Ultimately, if an attorney suspects that private data could be useful to the litigation of a family issue, court intervention should be sought.

The reasons for worrying about all of this are fairly obvious. As the City of New York Committee on Professional Ethics observed in its Formal Opinion 2010-2 (discussed in Part One of this article), allegations of infidelity sometimes may indeed be able to be substantiated by postings on Facebook, Twitter, MySpace and their brethren. This is not the only reason for family attorneys to seek access to social networking data. For example, it might prove useful in showing a court that a parent is not fit to retain custody of a child, or should be permitted only supervised visits. Or, as in the recent case of B.M. v. D.M., 31 Misc.3d 1211(A), Slip Copy, 2011 WL 1420917 (Table) N.Y.Sup.,2011. (Sup. Ct., Richmond Cty. 4/7/11) (DiDomenico, J.), evidence available on a social networking website could impact how much ongoing maintenance an ex-spouse should be ordered to pay.

A Case in Point

A recently decided case shows how useful social networking evidence can be to the family law attorney. The husband in B.M. v. D.M. commenced an action for divorce against his wife in April 2007, 11 years after they were wed. The court granted the divorce on the basis of the wife's constructive abandonment of her husband, but entry of the final judgment was held in abeyance until financial matters could be settled.

Neither the husband nor the wife had a college degree. The husband worked as a postal carrier, making approximately $48,000 per year. The wife had worked only during the first two years of the marriage. On the couple's second wedding anniversary they were involved in an auto accident that left both husband and wife injured. Each of them won damages in a lawsuit brought against the driver of the truck that hit them: The husband got $30,000 and the wife $69,183. The jury in that case specifically found that the wife had not suffered permanent injury, and she was not awarded damages for future pain and suffering or for loss of enjoyment of life. She later underwent two extensive surgical procedures on her back.

Years later, during this proceeding to help determine distribution of the martial estate and the extent of ongoing maintenance, the wife contended that she continued to suffer severe pain. Her doctor, who was treating her for this ongoing pain, testified on her behalf. Because of her back pain the wife claimed that she was completely unable to work, so she asked the court to order the husband to pay lifetime maintenance of $2,000 per month. The husband countered that the wife's surgeries had been successful and that she should be able to work.

The husband noted specifically that the wife was able to type for several hours per day on her computer, as evidenced by her extensive contributions to an Internet blog, excerpts of which he provided as evidence. There, she talked about taking belly dancing classes; dancing for long periods of time, sometimes several days a week; and traveling locally to perform as a belly dancer. In response to a question posed by a reader concerning why she did not post photos of her performances, she replied, “Gotta be careful what goes on line pookies. The ex would love to fry me with that.” (Plaintiff's 8C).

The blog postings were admitted into evidence because any statement or act by the defendant that is contrary to the defendant's interest may be received as an admission when offered by the plaintiff. See Reed v. McCord, 160 NY 330 (1899). The court observed that much of the wife's testimony concerning her inability to function physically was contrary to her blog entries, which she admitted she had written. Because of these postings, the court concluded that the wife had not met her burden of proving that she was permanently disabled, a prerequisite to an award of lifetime maintenance. Sarraga v. Sarraga, 262 AD2d 565 (2d Dept. 1999). Stated the court, “Wife's admissions in her blogs prove that she can spend significant time on a computer and is physically capable of traveling into Manhattan to belly dance on a frequent basis.” Her ability to take part in such activities was inconsistent with her claim that she was permanently unable to work because of accident-related back problems. Therefore, the court granted her only durational maintenance, in the amount of $400 per month, for two years.

Conclusion

Family law attorneys, like those in other fields, are finding that data obtained from social media can be invaluable in settlement negotiations as well as in litigation. As soon as a divorce, custody proceeding or other family matter is contemplated, counsel should look at whatever relevant information is on public view, and discern if further investigation is warranted. Waiting for a later, more convenient time to do this could give the opposing side, and potential witnesses, the opportunity to hide or delete materials that could be relevant.

At the same time, attorneys should counsel their own clients not to use social media until the matter has been settled (and sometimes long afterward). They need to understand that their postings are just as ripe for exploitation as are those of the opposing side.

Janice G. Inman is Editor-in-Chief of this newsletter.

Last month, we discussed some of the legal and ethical issues surrounding access to and use of information available through social networking media. In New York, thanks to a 2010 New York State Bar ethics opinion, attorneys may be confident that the State Bar will consider their behavior ethical if they access information made available to the public, even without permission. However, if the attorney (or his or her agent) uses trickery to gain access to data that the owner allows only certain people to see, the ethical line will be crossed. Ultimately, if an attorney suspects that private data could be useful to the litigation of a family issue, court intervention should be sought.

The reasons for worrying about all of this are fairly obvious. As the City of New York Committee on Professional Ethics observed in its Formal Opinion 2010-2 (discussed in Part One of this article), allegations of infidelity sometimes may indeed be able to be substantiated by postings on Facebook, Twitter, MySpace and their brethren. This is not the only reason for family attorneys to seek access to social networking data. For example, it might prove useful in showing a court that a parent is not fit to retain custody of a child, or should be permitted only supervised visits. Or, as in the recent case of B.M. v. D.M. , 31 Misc.3d 1211(A), Slip Copy, 2011 WL 1420917 (Table) N.Y.Sup.,2011. (Sup. Ct., Richmond Cty. 4/7/11) (DiDomenico, J.), evidence available on a social networking website could impact how much ongoing maintenance an ex-spouse should be ordered to pay.

A Case in Point

A recently decided case shows how useful social networking evidence can be to the family law attorney. The husband in B.M. v. D.M. commenced an action for divorce against his wife in April 2007, 11 years after they were wed. The court granted the divorce on the basis of the wife's constructive abandonment of her husband, but entry of the final judgment was held in abeyance until financial matters could be settled.

Neither the husband nor the wife had a college degree. The husband worked as a postal carrier, making approximately $48,000 per year. The wife had worked only during the first two years of the marriage. On the couple's second wedding anniversary they were involved in an auto accident that left both husband and wife injured. Each of them won damages in a lawsuit brought against the driver of the truck that hit them: The husband got $30,000 and the wife $69,183. The jury in that case specifically found that the wife had not suffered permanent injury, and she was not awarded damages for future pain and suffering or for loss of enjoyment of life. She later underwent two extensive surgical procedures on her back.

Years later, during this proceeding to help determine distribution of the martial estate and the extent of ongoing maintenance, the wife contended that she continued to suffer severe pain. Her doctor, who was treating her for this ongoing pain, testified on her behalf. Because of her back pain the wife claimed that she was completely unable to work, so she asked the court to order the husband to pay lifetime maintenance of $2,000 per month. The husband countered that the wife's surgeries had been successful and that she should be able to work.

The husband noted specifically that the wife was able to type for several hours per day on her computer, as evidenced by her extensive contributions to an Internet blog, excerpts of which he provided as evidence. There, she talked about taking belly dancing classes; dancing for long periods of time, sometimes several days a week; and traveling locally to perform as a belly dancer. In response to a question posed by a reader concerning why she did not post photos of her performances, she replied, “Gotta be careful what goes on line pookies. The ex would love to fry me with that.” (Plaintiff's 8C).

The blog postings were admitted into evidence because any statement or act by the defendant that is contrary to the defendant's interest may be received as an admission when offered by the plaintiff. See Reed v. McCord , 160 NY 330 (1899). The court observed that much of the wife's testimony concerning her inability to function physically was contrary to her blog entries, which she admitted she had written. Because of these postings, the court concluded that the wife had not met her burden of proving that she was permanently disabled, a prerequisite to an award of lifetime maintenance. Sarraga v. Sarraga , 262 AD2d 565 (2d Dept. 1999). Stated the court, “Wife's admissions in her blogs prove that she can spend significant time on a computer and is physically capable of traveling into Manhattan to belly dance on a frequent basis.” Her ability to take part in such activities was inconsistent with her claim that she was permanently unable to work because of accident-related back problems. Therefore, the court granted her only durational maintenance, in the amount of $400 per month, for two years.

Conclusion

Family law attorneys, like those in other fields, are finding that data obtained from social media can be invaluable in settlement negotiations as well as in litigation. As soon as a divorce, custody proceeding or other family matter is contemplated, counsel should look at whatever relevant information is on public view, and discern if further investigation is warranted. Waiting for a later, more convenient time to do this could give the opposing side, and potential witnesses, the opportunity to hide or delete materials that could be relevant.

At the same time, attorneys should counsel their own clients not to use social media until the matter has been settled (and sometimes long afterward). They need to understand that their postings are just as ripe for exploitation as are those of the opposing side.

Janice G. Inman is Editor-in-Chief of this newsletter.