Social Media Spoliation in Divorce Cases

The rapid evolution of technology while on one hand has been a boon; it often poses challenges related to presentation of evidences in courtrooms. A major change in divorce proceedings has been the emergence of evidence through social media websites such as Facebook, MySpace, Twitter etc..  Evidence found through these social media sites has transformed the way lawyers litigate cases.

During discovery proceedings the activities of parties’ on online communities such as Facebook, MySpace carry the status of potential evidence just as emails etc. The same preservation duties apply to these social sites as well.

Spoliation means a party’s deliberate effort of destroying or concealing such evidence that would have been harmful to him (or her) at trial.   A person, who is going through a divorce or is expected to file a divorce petition, has a duty not to destroy the evidence. 

In Gatto v. United Air Lines, Inc., 2013 U.S. Dist. LEXIS 41909, (D.N.J. Mar. 25, 2013), the Plaintiff had sued his former employer for injuries sustained on the job. The employer sought discovery into Plaintiff’s Facebook page, including requests for authorizations for his social networking sites. After service of discovery, Plaintiff de-activated his Facebook page which was further permanently deleted after 14 days as per Facebook’s policy. The Court found spoliation and granted an adverse inference. The court noted that an adverse inference, or ‘spoliation instruction,’ permits a jury to infer that the fact that a document was not produced or destroyed is evidence that the party that has prevented production did so out of the well-founded fear that the contents would harm him.

In order to grant an adverse inference instruction the Court must find that four factors are satisfied:

1. The evidence was within the party’s control;
2. There was an actual suppression or withholding of evidence;
3. The evidence was destroyed or withheld was relevant to the claims or defenses; and
4. It was reasonably foreseeable that the evidence would be discoverable.

While Gatto is not a family law case, the rule of law is applicable in many family law cases.