During litigation, don’t keep us posted

All in the Family

Celia Gamrath

Celia Gamrath is a Cook County Circuit Court judge in the Domestic Relations Division. The views expressed in this column are her own and not those of the circuit court.

April 2016

It’s 8:14 p.m. on a Tuesday. You are using your husband’s iPad. A Facebook message appears. He hears the message ping and snatches the iPad away from you. Your gut tells you he is cheating. The proof is out there in the cloud, Facebook and other social media sites. Rest assured your divorce lawyer will find it.

The number of people using social media in divorce cases is astonishing. Almost daily, litigants try to show me their smartphones, hoping their spouse’s damning stream of text messages, e-mails, Facebook posts and Instagram photos will reveal marital misconduct, poor parenting, harassment, pornography and dissipation.

LinkedIn is used regularly to show a spouse’s ability to earn income and obtain employment. Last year, a New York court permitted a divorce litigant to be served with summons via Facebook, finding it comported with the constitutional standards of due process.

Technology opens up a whole new world of discovery, but it also presents issues of privacy and admissibility.

In terms of privacy, what you publish on social media is fair game. It is open to the public, your spouse and divorce lawyers, and it often chronicles sordid events, casting you in an unfavorable light. What you post will likely be admissible in court under the Illinois Rules of Evidence as a statement by a party-opponent, an admission or for impeachment. However, if your spouse accesses your e-mail or Facebook account without permission, they may have committed a state and federal crime punishable by a fine or imprisonment.

During discovery, your spouse may demand production of your computer hard drive. Deleted information may be retrieved by forensic analysis. They may also try to subpoena your Internet and cellphone service providers. Subpoenas are usually challenged, take a while to process and sometimes the data is purged before it can be turned over. The path of easier resistance is to ask for the information immediately and directly from your spouse in a notice to produce.

Text messages and e-mails between spouses are admitted regularly into evidence. They often corroborate claims about parenting, missed visits and late pick-ups or drop-offs. They also tend to substantiate allegations of harassment and abuse. In cases of stalking and domestic violence, people also try to introduce tracking information obtained from GPS technology, I-Pass toll records, Lyft and Uber. I was stunned to learn the location setting in the iPhone and Android tracks your movements for weeks.

Divorce litigants and their attorneys regularly surf the Internet and social media sites to dig up dirt on the other party. They also “friend” them, their friends, lovers and family on Facebook or connect via LinkedIn looking for information about illicit partying, excess spending, assets, employment, income and behavior relevant to parenting issues.

It is not unusual for someone to create a fake profile to connect on social media, so be careful not to friend or link with a person you do not know. Other precautionary measures may be to change your password and privacy settings, disable the location setting on your phone, check your LinkedIn account for accuracy, log out of your computer when you are finished, Google yourself periodically, do not send Instagram or Snapchat photos, stop posting and stop tweeting.

On the other hand, save and back up your text messages and e-mails between you and your spouse that may be relevant to your case or used for impeachment.

For photos and electronic communications to be admitted as evidence, you must lay a foundation and authenticate the document through a witness with personal knowledge of it. Your text messages and Facebook posts are easily identifiable and usually admissible. However, a post on another person’s Facebook page is more tenuous and less likely to be admitted unless you lay a proper foundation through that person’s testimony. Hearsay objections are common, but if the Facebook post is not offered for the truth of the matter asserted, it is not hearsay and may be used for impeachment purposes.

It seems obvious to stop posting and tweeting while litigation is in process, but litigants often need reminding. What is out there now cannot be erased or tampered with, for it could be deemed spoliation of evidence, but you can stop the bleeding by not posting more. If you simply cannot resist the urge to post, post only those things you want your spouse or their attorney to read. If you would be embarrassed to see it streaming online, don’t do it, say it or write it.

Posting on social media is not like writing in a private diary. It is fertile ground for finding evidence that may be used against you in court.