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The Danger of Social Media in Family Law - Anything You Say or Post Can Be Used Against You.

Can My Social Media Postings Be Used in Court? Yes. Social media postings are no different than other evidence. In order to be admissible in court, social media postings must be relevant, authenticated and admissible at trial.

What if My Social Media Accounts are Private? Making your account private does not always protect your account from being viewed by an opposing party. Having a mutual friend could allow access to private social media accounts. Even if your account is private, formal discovery could be used to obtain information from a private account as long as the discovery request is limited to information relevant to the case. Formal discovery requests should be narrowly tailored, identify information sought and include time parameters. Open ended or broad discovery requests could be denied.

Should I Delete My Accounts? Deleting your social media account or posts that may be relevant to your case could be considered spoliation, which means destroying evidence. Talk to your lawyer before deleting any social media accounts or posts. A party to an action has a duty to preserve relevant information. You should change passwords and make your account private to reduce public access to your social media accounts. Carefully read your retainer agreement with your lawyer as it may contain language about preserving social media, emails and digital evidence. Do not post about your case or the other party while you are involved in litigation.

Social Media Connections. Do not connect via social media with attorneys, Guardian ad Litems, judges or commissioners involved in your case. The Wisconsin Court of Appeals recently reversed and remanded a Circuit Court decision in a paternity action because the judge accepted a Facebook friend request from a party prior to issuing a decision and he later decided in favor of that party. Miller v. Carroll, 2019 WI App 10 (Ct. App. 2019). The Court of Appeals concluded that the undisclosed Facebook connection between the judge and the litigant created a great risk of actual bias and resulted in the appearance of partiality. Id. at ¶29. However, a preexisting social media connection between a judge and opposing counsel may not necessitate a judge withdrawing from a case.[1]

Use Common Sense. Be upfront and honest with your lawyer about any negative information that may appear on your social media accounts and do not delete anything. Be sure to change your passwords and update your privacy settings. Do not connect with anyone that you do not know on social media. Refrain from discussing your case or the opposing party and be mindful of what you post or share on social media and how that could be perceived by the other party or the court. Consider anything you post to be available to the other side to use against you in court.

[1] Hudson, David L., Jr. (2019, May). Is Your Judge Your Facebook Friend?, ABA Journal, 24-25.

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