Facebook: What Family Lawyers Should Know

More and more, Facebook posts play a role in divorce litigation. Here's a look at Facebook-related issues that can arise and suggestions for advising your clients about how to approach Facebook during divorce.

The omnipresence of Facebook is a fact of contemporary life. More than half of America has a Facebook account.¹ The company has more than one billion active users and adds nearly 600,000 mobile users per day.²

Understanding how Facebook³ and other social media work and what they mean for clients is thus essential, both in the advice you give and the research and discovery you undertake. It is fast becoming as indispensable as it is unavoidable in any lawyer's practice, not least family lawyers.

Advising your clients about the perils of Facebook

We necessarily caution clients in the midst of divorce or some family dispute that they are under the microscopic eye of the court. We tell them that their behaviors and choices can and will be scrutinized, too frequently without regard to context. We warn them that, despite their best intentions, their spouse (and their spouse's attorney) will likely attempt to exploit the various decisions they've made and actions they've taken, to the extent that it may serve that spouse's own position or may work some advantage during the process. In short, we tell them to proceed with utmost caution in how they behave and interact with others - in both what they say and what they do.

Many of our clients use Facebook on a daily basis, whether from their personal computers, at work, or, increasingly, on the go from their smartphones.⁴ Facebook provides a forum for users to communicate with others in immediate, efficient, and powerful ways, often tens or even hundreds of times per day. They post text and photos through a vast network of "friends," posts that are accessible by third parties who may be neither friends nor even acquaintances but who can gain access through not-so-sophisticated web searches.

What is not immediately obvious to many clients (and many experienced practitioners) is how using Facebook and other social media can negatively affect their clients' positions. As professor Daniel J. Solove stated in his book The Future of Reputation: Gossip, Rumor and Privacy on the Internet:

Increasingly, people are exposing personal information about themselves and others online. We can now readily capture information and images wherever we go, and we can then share them with the world at the click of a mouse. Somebody you've never met can snap your photo and post it on the Internet. Or somebody that you know very well can share your cherished secrets with the entire planet. Your friends or coworkers might be posting rumors about you on their blogs. The personal email you send to others can readily be forwarded along throughout cyberspace, to be mocked and laughed at far and wide. And your children might be posting intimate information about themselves on the Web - or their friends or enemies might be revealing your family secrets. These fragments of information won't fade away with time, and they can readily be located by any curious individual.⁵

The site that most people will be posting this type of information on is Facebook - the world's largest and most powerful "social networking" website.

Facebook is a terrific way for clients to keep in touch with people and organizations they associate with or may be interested in learning about. Information and contacts are centrally located and the site's functionality enables users to keep current on just about everything. It's easy, accessible, and the interactions it provides are nearly instantaneous.

How clients hurt themselves on Facebook

However, and because Facebook is so easy to use, so fluid and so unimpeded, users rarely stop and think about how what they are posting (and, more troubling, what others may be posting about them without their consent or knowledge) can be used against them, either in court or in the negotiations of a divorce proceeding. Consider the following examples.

Night on the town. A husband (37) and wife (35) are engaged in a contentious divorce. They have two children, ages five and three, whose sole custody they are each fighting for. The wife goes out one evening with some friends and winds up at a restaurant and bar. She has one cocktail, enjoys the company of her friends, and as the night goes on, friends of friends show up, the music gets louder, and one of those other friends leans close to ask the wife how she knows the other people in the group.

At that very instant (11:14 p.m.), a group member takes a photo of the wife, face-to-face with this stranger (no more than two inches apart) and immediately uploads it through his cell phone to his Facebook page. At 11:16 p.m., someone else, at home, at a computer, views the picture, tags the photo, and (with a click of a button) has alerted all of the wife's Facebook contacts (including her husband) that a new photo has been posted. At 11:19 p.m., the husband views the photo of his wife at a bar holding a drink just five minutes earlier, at 11:14 p.m., engaged in what appears to be an intimate moment with a man he has never seen before.

At 11:22 p.m., the husband emails his attorney a copy of the photo of his wife and demands that she be restricted from access to their children because she is out of control and partying with strange men. At 9:05 a.m. the following Monday morning, husband's attorney files a petition to restrict the wife's access to the parties' children - and uses that photo in support of doing so.

Status update. After an acrimonious court appearance at which he is denied relief he sought from the court, the husband goes into the hallway and posts the following message as his Facebook status: "I hate her. I will do everything necessary to ensure she'll lose the kids. She will never see them again."

Minutes later, a friend of the wife, who, until that time remained neutral in the parties' divorce, reads the message, prints it from her computer, and sends it to the wife. Outraged, the wife sends it to her attorney, who returns to court the following morning seeking an emergency order of protection - relying on the husband's message as a primary basis for doing so.

The ability to expose personal information on the Internet is immediate and typically beyond the control of the person who might otherwise keep the information private. Photographs, text, and other data can be posted without an individual's consent and often without his or her knowledge. Facts and circumstances that might be innocuous can be distorted and exploited for gain by the other party (see the first example above).

Cleansing Facebook pages: the danger of spoliation

All practitioners must become familiar with Facebook and how it and other social networking sites function to advise clients appropriately. It's important to understand basic Facebook concepts like "profiles," "wall posts," "tagging," and how the ability to upload photos and post information about people with and without their knowledge and consent may affect your clients.

For example, your client might be tempted to wipe his or her account clean in an effort to erase any potentially damaging postings or activity. This is not only ineffective - at least to the extent it's impossible to erase tracks left on the Internet - it also can create legal problems for your client. Before you advise a client considering the approach, you must familiarize yourself with the concept of electronically stored information (ESI) and spoliation of evidence and how they bear on the advice and guidance you give.

Because ESI is different in certain and specific respects from traditional "paper" documents, it presents various technological and legal challenges for both the party and the attorney. Failure to adequately preserve ESI located in email, on computers, and in other web-based technologies, could lead to a charge of spoliation and the imposition of often onerous sanctions by the court against the party, the attorney, or both.⁶

The Illinois Supreme Court has defined spoliation as the failure to adequately preserve evidence.⁷ Absent some duty or other legal requirement to preserve such information, individuals are under no obligation to retain evidence. Unfortunately, there is no bright-line test to determine when that duty or obligation arises or attaches.

Presumably the filing of a lawsuit triggers the duty, but so arguably does notifying someone of the possibility that litigation may occur (e.g., by correspondence, subpoena, or otherwise).⁸ And while the scope of a duty to preserve evidence is not clearly defined, it extends to documents⁹ and other materials within a party's possession, custody, or control that should reasonably be anticipated to be subject of discovery in a case.

Although there appears to be no Illinois Appellate Court decision finding a cause of action for negligent spoliation arising from a domestic relations proceeding,¹⁰ the possibility should not be dismissed. A claim of spoliation of evidence can lead to various sanctions, including attorney fees and costs, fines, adverse inference findings, barring of claims and/or defenses, default judgments and contempt findings.¹¹

Turning the tables: Facebook as an information source

Just as Facebook can reveal a lot about your client, it can be a rich source of information about other parties. Without your having to resort to even the most basic formal discovery devices (e.g., notices to produce documents, subpoenas, etc.), Facebook can provide an equally (or maybe even more) extensive source of information - and do it immediately.

While Facebook is subject to the subpoena process, and thus you could make a request of the opposing party to maintain all digital records within its control until it complies with your subpeona, you might find it difficult and inconvenient to obtain the desired results. Facebook may object to discovery pursuant to various state and federal laws (e.g., Electronic Communications Privacy Act ("ECPA") Title II-Stored Communications Act 18 USC 2701-2712), and the opposing parties may delete postings, photos, or other negative information about themselves with the click of a mouse. They may do so well before a court has the ability to consider, let alone rule, on whether such information must be preserved for later use in a proceeding.¹²

One area where Facebook can provide useful information is in identifying and exposing potential sources of dissipation - i.e., when marital property is improperly used for the sole benefit of one spouse, for a purpose unrelated to the marriage, at a time when the marriage is undergoing an irreconcilable breakdown.¹³ Consider another example.

The wonderful evening. The wife believes her husband is having an affair with another woman. This other woman has a Facebook profile, the wife finds the profile, and sees the following post on the woman's wall: "We had the most wonderful evening; dinner at Tru, drinks at the Signature Room, and an amazing night at the Ritz. AND, he gave me the most beautiful bracelet I've ever seen!!!"

While the alleged new girlfriend doesn't give a second thought to telling her friends about the wonderful evening she had, the damage it may cause to Mr. Wonderful's divorce proceeding could be significant. Undoubtedly, the wife's attorney will now investigate any money spent at the referenced establishments, assert that the husband has dissipated marital assets, and make a claim for reimbursement to the marital estate. In fact, the wife's attorney may be able to effectively get the husband to make admissions to these expenditures through depositions, a request to admit facts, or on the stand at trial.

Goldmines and landmines

Information gleaned from Facebook and other social media sites can provide relevant information that can be used in various proceedings - e.g., inconsistent or inappropriate posts with or concerning third-parties, posts about travel or other activities (with or without children), posts concerning the use or abuse of drugs and alcohol - the possibilities are great.

Accordingly, while the benefits of Facebook and other social media sites are vast and their usefulness immense, the potential negative consequences they might cause for your client's divorce proceeding may not be immediately obvious to him or her, and it will necessarily be your responsibility to advise your client appropriately.

Adam Kibort is an associate with Grund & Leavitt, P.C. in Chicago and a fellow of the American Academy of Matrimonial Lawyers. He practices exclusively in the area of family law. He thanks Richard A. Wilson, a partner at Grund & Leavitt, for his invaluable advice and assistance.

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1. Socialbakers, Facebook Statistics by Country, http://www.socialbakers.com/facebook-statistics/ (last visited Dec. 7, 2012).
2. Knowlton Thomas, Facebook Is Adding More Than 600,000 Mobile Users Per Day, TechVibes (Oct. 12, 2012), http://www.techvibes.com/blog/facebook-is-adding-more-than-600000-mobile-users-per-day-2012-10-12.
3. Though Facebook is the most ubiquitous and predominant social network, you should also familiarize yourself with others, such as Twitter, LinkedIn, Instagram, and MySpace.
4. As of Sept. 30, 2012, there were 604 million monthly active users who used Facebook mobile products. Facebook Newsroom, Company Info, Key Facts, http://newsroom.fb.com/Key-Facts (last visited Dec. 7, 2012).
5. Yale University Press (Oct. 2007), p. 2.
6. See Peal v. Lee, 403 Ill.App.3d 197, 204, 933 N.E.2d 450, 458-59 (2010); Burlington Northern and Sante Fe Railway Co. v. ABC-NACO, 389 Ill.App.3d 691, 906 N.E.2d 83 (1st Dist. 2009); Krumwiede v. Brighton Associates, LLC, No. 05 C 3003, 2006 WL 1308629 at *8 (N.D.Ill. May 8, 2006); Gatto v. United Airlines Inc, Allied Aviation Services, Inc., 10-cv-1090, 2013 U.S. Dist. LEXIS 41909 (D.N.J.) (both the attorney and the client were sanctioned).
7. See Boyd v. Travelers Insurance Company, 166 Ill. 2d 188, 652 N.E.2d 267 (1995); Dardeen v. Kuehling, 213 Ill. 2d 329, 335, 821 N.E.2d 227, 230 (2004). While Illinois does not recognize an independent cause of action for spoliation, actions under negligence theory are recognized. Id. Under a negligent spoliation theory, there is a two-prong test for determining whether there is a duty to preserve evidence. As a predicate matter, the court must first determine whether such a duty arises. If a duty is found to exist, then the court must determine whether a reasonable person would have foreseen that the evidence was material to a potential civil action. In order to prevail on a cause of action for negligent spoliation, the plaintiff must satisfy both prongs. Dardeen, 213 Ill. 2d at 335, 821 N.E.2d at 230.
8. Jones v. O'Brien Tire and Battery Service Center, Inc., 322 Ill. App. 3d 418, 752 N.E.2d 8 (5th Dist. 2001).
9. Illinois Supreme Court Rule 201(b)(1) defines "document" as follows: "The word 'documents,' as used in these rules, includes, but is not limited to, papers, photographs, films, recordings, memoranda, books, records, accounts, communications and all retrievable information in computer storage." Ill. S.Ct.R. 201(b)(1) (emphasis added).
10. To prevail on a spoliation of evidence claim, the plaintiff must prove that he or she suffered compensable damages in the underlying suit. Natale v. Gottlieb Memorial Hosp., 314 Ill. App. 3d 885, 890-91, 733 N.E.2d 380, 385 (1st Dist. 2000); Jones v. O'Brien Tire and Battery Service Center, Inc., 322 Ill. App. 3d 418, 752 N.E.2d 8.
11. See Peal, 403 Ill.App.3d at 206, 933 N.E.2d at 459; Burlington Northern and Sante Fe Railway Co., 389 Ill.App.3d 691, 906 N.E.2d 83; Krumwiede, 2006 WL 1308629 at *9; Gatto, 2013 U.S.Dist. LEXIS 41909.
12. Facebook does provide a mechanism for users to download account information directly through the Account Settings.
13. In re Marriage of O'Neill, 138 Ill.2d 487, 496, 563 N.E.2d 494, 498 (1990)).