In Lorraine v. Markel Am. Insurance Co., 241 F.R.D. 534 (D. Md. 2007), the court identified five evidentiary issues that must be overcome in order to introduce electronically stored information as evidence at trial.
First, the information must be relevant. This should be easy to establish since social networking information provides a litany of photos, status updates and commentaries discussing your client’s or other parties’ personal conduct and behaviors. Photos of parents who appear intoxicated with their children around, for example, should be relevant to the issue of fitness for custody. In states that permit a showing of fault, pictures or messages that relate to extramarital affairs are clearly relevant. Photos that show a spouse and his or her newly acquired expensive goods can be relevant to defeat a claim of lack of resources available for support.
Second, the attorney offering the evidence must also show that the probative value of the message or images substantially outweighs any dangers of unfair prejudice.
Third, the proponent must authenticate the evidence. It appears that many judges routinely permit the introduction of Facebook-acquired information because the author of this information, if a party to the action, is available to testify to its authenticity. Alternatively, you can authenticate a photo by showing that it is an accurate depiction or description of the individual. The person who obtained the information can also testify as to how and when it was obtained.
Overcoming hearsay objections is the fourth issue. If you are trying to admit the statement to prove the matter asserted, then you must establish a hearsay exception. Images and photos on websites are not hearsay unless they depict the matter asserted. Messages and images on social networking sites are more often used for non-hearsay purposes such as for impeachment or to establish a state of mind, motive, or purpose.
The fifth issue to deal with is the “original writing” evidentiary rule which requires that the original record be produced if it is available. Some technology-friendly courts consider a copy of the original message or image as having the same evidentiary value as the original. The copy must accurately reproduce the original and simply printing from the website should accomplish this.
If the message or image has been removed from the social networking website, an exception to the “original writing” rule can permit secondary evidence when the original is no longer available due to unintended or intended conduct. Additionally, you can request the original message or image from the social network website provider but these providers tend to resist such requests. They claim that divulging this information violates the federal Stored Communication Act which prohibits any electronic communication service “from knowingly divulging the contents of any communication while in electronic storage by that service to any person other than the addressee or intended recipient.”
Please contact to discuss!
Simon W. Johnson
swj@swjlawoffice.com
Showing posts with label Facebook. Show all posts
Showing posts with label Facebook. Show all posts
Sep 22, 2010
Using Social Networking Websites In Family Law
Attorneys are increasingly using social networking sites to discover relevant information for use in trial preparation, i.e. depositions, as well as for use at trial as admissible evidence. Sites such as Facebook, MySpace, LinkedIn and Twitter provide a wealth of personal information on the defendant or other witnesses in the cases. However, just as the skilled attorney can use these sites to build a case against the other side, this skilled attorney should also caution his own client as to the risks of using social networking sites.
Clients should be advised to modify all passwords so that a spouse or family member is unable to create a false profile. At the beginning of representation, attorneys should advise clients to stop using or adding information to any social networking sites that they had been using. Clients could potentially change their privacy options so that only people they know can view their information. The attorney must be careful, though, and not advise the client to remove any information from these sites that could be deemed relevant to the case. Removing such arguably relevant information could run afoul of spoliation.
Additionally, many clients use these sites for legitimate social connection, especially during highly emotional times when the client may not be as outwardly social as before. But, this is clearly the worst time for a client to be venting his or her emotions on any social networking site. Clients with children create extra problems as children may simply not care about a court order saying they cannot use these sites. Violations of such orders will not work wonders for your client’s case. And this is especially true if the child surfs the social networking sites and reads emotionally-charged posts that the child’s parent - your client - has posted.
Just as attorneys request other confidential information from their clients, such as social security numbers, attorneys should also request access to the client’s social networking sites. This allows an attorney to review the available information to be able to determine if anything could be problematic. Due to the modern acceptance of open, online sharing of social information, clients sometimes have a difficult time understanding that the information posted on these sites can be used as evidence in a divorce case. By explaining the ramifications to them, hopefully they will gladly give you access to their social networking sites.
Please contact me to discuss this or any other legal matter!
Take care,
Simon W. Johnson
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