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Blog: But I Thought My Facebook (And Other Social Media) Was Private?

April 22, 2015

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Alimony is requested, personal injuries are claimed, or allegations are made which appear plausible based upon the evidence disclosed by parties during the legal process. However, then the golden ticket is found, i.e., the opponent’s Facebook page. Even though the opponent thought their Facebook page was private, news flash…it is not.  Inevitably, one of the Facebook “friends” knows someone who knows the opponent, and within minutes all of the “private” Facebook messages and images are finding their way to the opponent’s attorney.

During the past 20 years, social media and electronic communications have radically changed how people develop relationships, how families communicate, how “friends” share information, and how lawsuits are tried. For those who litigate, social media posts can prove or disprove the allegations of a case. However, to use the information from social media, proper foundation must be laid, including proper authentication. This can be accomplished by testimony of a witness with knowledge.  With Facebook, the “friend” who gathered the information can be called to testify. The “friend” can establish the Facebook relationship with the opponent, how long they have been Facebook friends, how familiar they are with the opponent’s Facebook activity, if the information from the printout matches what the witness saw online, authentication of Facebook pictures, etc.

Additionally, a party can be required to produce their Facebook activity log. The activity log can be accessed by going to the Facebook account on the computer web browser, (not on a tablet or smartphone), and by clicking on the downward facing carrot in the upper right-hand column and scrolling down to the activity log. The history of one’s Facebook activity, from likes, to posts, to pictures, to comments is all maintained in an organized fashion.  So while your opponent may not be able to access your Facebook page, they may not need to.  You may have to produce it.

Before finding yourself in litigation whether it be a divorce, custody battle, or a lawsuit, check your Facebook and other social media pages because you never know which “friend” is watching.  Although you think you have done everything to create a private Facebook page, beware that “private” today does not mean it is not discoverable or cannot be used against you in court.

This blog post is authored by Roz Koob and meant for informational purposes only.  It is not meant to provide legal advice in any particular circumstance or factual situation.  You should consult with an attorney prior to taking any action regarding the information contained herein.  

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