Facebook Evidence in Divorce Cases

Updated 4/24/2019

A Pennsylvania case, Largent vs. Reed, in ruling that a Facebook account was not privileged bluntly announced “only the uninitiated or foolish could believe that Facebook is an online lockbox of secrets.” Keep in mind that ruling was way back in 2011, when Twitter, Instagram, Vine, and Snapchat were still new or yet to exist. Social media continues to infiltrate our lives and it is critical to understand the “treasure trove” of information in cyberspace that can win or lose your case in Court. Facebook alone has over a billion users and Facebook is cited in 1/3 of divorce cases! 

Certain information posted on Facebook may be admissible even if posted without your knowledge or consent such as being tagged in a picture. This article will explore some of the issues related to Facebook evidence in divorce cases as interpreted by various Courts across the country.

Useful evidence from Facebook profiles

• Relationship status
• Pictures of partying or drinking
• Pictures of vacations or spending
• Messages and posts boasting about income and purchases
• Geo-tag location data from pictures
• Disparaging posts about the other party
• Employment and income information

How to obtain Facebook evidence

1. ​View someone’s profile via their “friends.”
2. Discovery such as Interrogatories, Request for Production of Documents, and Request for Admissions.
3. Subpoena other parties or Facebook itself as a last resort.
4. Print pages via the internet if the profile is set to public.
5. Send a "spoliation letter" to opposing counsel requiring the other party to preserve evidence and not delete Facebook accounts.
6. Request Facebook passwords via discovery to access the information directly.
7. Request a full Facebook profile be downloaded and provided via discovery.
8. Ask about Facebook information during a deposition or trial.

Cases admitting Facebook evidence 

Martinelli v. Mitchell, 386 S.W.3d 148 (Mo. App. S.D. 2012)
Social media evidence on Facebook was admitted during protective order hearing. Martinelli presented evidence to the trial court regarding text messages, phone calls, and Facebook. The evidence included name calling, insults, and threats.  The ruling admitting Facebook evidence was affirmed on appeal.
 
Harris v. Harris (In re Marriage of Harris), 446 S.W.3d 320 (Mo. App. 2014)
The court allowed evidence on the Father’s Facebook posts in his divorce case. He had posted violent and threatening messages about mother on Facebook while the action was pending. Father had a history of violence with mother and child. Mother was prevented visitation by father and refused any information about their child for one entire year. The father also traveled a lot so his girlfriend would watch the child. The court also had evidence of the girlfriend “liking” the father’s violent posts on Facebook.

In re Marriage of Bates, 817 N.W.2d 32 (Iowa Ct. App. 2012)
Part of the basis for awarding sole physical custody to father was mother posting on Facebook that the children “have a really bad father.”  The Court found the Facebook posts were relevant because the oldest child could clearly access Facebook.

Safdar v. AFW, Inc., 279 F.R.D. 426, 430 n. 41 (S.D. Tex. 2012)
A Facebook user had listed nine stores as operating whereas his affidavit only disclosed two stores. Printouts from the Defendant’s Facebook page showing nine stores were admitted to contradict the affidavit of the Defendant.
 
Crispin v. Christian Audigier, 717 F. Supp. 2d 965 (C.D. Cal. 2010)
The court applied the Electronic Stored Communications Act to Facebook in quashing the portion of subpoena that applied to communications in parts of the profile the user had selected as private. In so ruling the court held that general postings viewable to the public on Twitter or Facebook were discoverable, but private messages where the website was acting as electronic communication service “ECS” were not discoverable.

**This underlying rationale in Crispin is heavily relied upon by Facebook to vehemently oppose subpoenas requesting complete profile data of any user.
 
Ledbetter v. Wal-Mart Stores, Inc., No. 06-cv-01958-WYDMJW, 2009 WL 1067018, at *1 (D. Colo. Apr. 21, 2009)
The Court refused to quash Wal-Mart’s subpoenas directed to the social media profiles of the Plaintiff who was suing for personal injury. The subpoenas were allowed to request all communications, including private blog entries, as the Court held it was “reasonably calculated to lead to the discovery of admissible evidence as is relevant to the issues in this case.”
 
Romano v. Steelcase, 30 Misc. 3d 426, 907 N.Y.S.2d 650 (Sup. Ct. 2010)
The Court allowed the discovery of an entire Facebook profile.
 
Giacchetto v. Patchogue-Medford Union Free School District, No. CV11–6323, 2013 WL 2897054, (E.D. N.Y. May 6, 2013)
This New York Court allowed a narrow approach to social media discovery in limiting said discovery to relevant allegations pertinent to the lawsuit.
 
United States v. Meregildo, No. 11 Cr. 576 (WHP), 2013 WL 36421 (S.D.N.Y. Jan. 31, 2013)
No Fourth Amendment protection for publicly posted information. The Court did opine that protection could potentially apply if a user had limited access to the public via privacy settings within a social media site.
 
LaLonde v. LaLonde, No. 2009-CA-002279-MR, 2011 WL 832465 (Ky. Ct. App. Feb. 25, 2011)
Pictures of Wife drinking were admitted over her objection that anyone could “tag” names to pictures posted to Facebook. The fact that she admitted she was the one in the pictures was enough to authenticate and admit into evidence.
 
Campbell v. State, 382 S.W.3d 545, 550 (Tex. App. 2012)
The Court upheld the admission of Facebook messages as authentic by the lower Court despite concerns that anyone could create a fake profile and post messages.

Facebook Evidence Excluded by the Court

​People v. Castregon, 2013 WL 2243876
The Court refused to admit a Facebook photo where the witness had no personal knowledge of who took or posted the photo.
 
Caraballo v. City of New York, No. 103477Ͳ2008, 2011 N.Y. Misc. LEXIS 1038 (Richmond Cty. Sup. Ct. March 4, 2011)
The Court denied a motion to compel discovery of plaintiff’s social media accounts that included a request for all deleted pages and related information. The Court held the party seeking the information failed to establish a factual predicate as to what relevant information would be obtained.
 
Barnes v. CUS Nashville, LLC, No. 3:09-cv-00764, 2010 WL 2265668 (M.D. Tenn. 2010)
The court quashed a subpoena to protect the privacy interests of the third parties when the Defendants in a premises liability action requested restricted content on Plaintiff’s Facebook profile, including photos of her and her friends dancing on the bar where Plaintiff fell.

Can a Court force me to disclose my Facebook password?

Courts have come down on both sides of this question when deciding whether or not to compel disclosure of Facebook passwords. One central question that seems important to the Courts is whether the request for total access via password disclosure is a “fishing expedition” versus one reasonably likely to produce relevant evidence.

Cases where Court compelled Facebook password disclosure

​Gallion v. Gallion, FA114116955S, 2011 WL 4953451 (Conn. Super. Ct., Sept. 30, 2011)
A judge actually ordered the attorneys of both parties to exchange passwords to their clients’ Facebook and dating website accounts to foster equal disclosure of information.

Mazzarella v. Mount Airy Casino Resort, No. 1798 Civ. 2009 (Pa. Ct. Com. Pl. Monroe Cnty., Nov. 7, 2012)
A Judge forced a party to produce their social media username and password requested in discovery via an interrogatory.
 
McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD, 2010 WL 4403285 (Pa. Ct. Com. Pl. Jefferson Cnty., Sept. 9, 2010)
Plaintiff was compelled to produce Facebook login information when activities described (fishing trip and attending Daytona 500) on the public portion of the Facebook page appeared to conflict with the plaintiff’s claim for damages in a civil suit.
 
Largent v. Reed, No. 2009-1823, 2011 WL 5632688 (Pa. Ct. Com. Pl., Franklin Cnty., Nov. 8, 2011)
This case involved personal injury claims stemming from an accident between a car and a motorcycle. The defendant requested the Court to compel the release of the plaintiff’s Facebook passwords. In the request the Plaintiff asserted shortly after the accident that photos posted to Facebook were still public and called into question the nature and extent of alleged injuries.
​
The Largent court held that the Facebook account was not privilege and stating is no reasonable expectation of privacy on Facebook. Almost all information on Facebook is shared with third parties, and there is no reasonable privacy expectation in such information. 

Cases where Court refused to compel Facebook password disclosure

Progressive Ins. Co. v. Herschberg, No. 000014/10, 2011 WL 1991960 (N.Y. Sup. Ct., Mar. 30, 2011)
Facebook photos seemed to contradict testimony of the raised an issue of fact for further hearing; however, the court found that further discovery including unlimited access to the Facebook account was unwarranted and overbroad.
 
Tompkins v. Detroit Metropolitan Airport, 278 F.R.D. 387 (E.D. Mich. 2012)
In this personal injury case the Plaintiff was not forced to reveal her password to her Facebook account as requested by the Defendant. The court reasoned  that while material posted on a private Facebook page is generally not privileged, nor is it protected by common law or civil law notions of privacy, an opposing party does not have a generalized right to rummage at will through information that the plaintiff has limited from public view. The Defendant failed to meet a bare showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence.
 
McCann v. Harleysville Ins. Co., 910 N.Y. S.2d 614 (App. Div. 2010)
The court refused to compel disclosure of photographs on Facebook and or to authorize access to Plaintiff’s Facebook account. The Defendant’s first request was overly broad and that the amended request had failed to establish a factual predicate that the Facebook account was relevant. 

Case where the Judge reviewed the Facebook account 

Offenback v. L.M. Bowman, Inc., No. 1:10-CV-1789, 2011 WL 2491371 (M.D. Pa., June 22, 2011)
The parties invited and allowed the court to conduct a review of the plaintiff’s social networking accounts to make a determination as to what was discoverable evidence. In so doing the Court examined the accounts and disclosed certain information deemed relevant.

Should I delete my Facebook page before Court?

Be aware there could be consequences for simply deleting your entire Facebook account as in the case cited below. The Court may also assume there was information detrimental to your case based upon deletion of your account. Although deleting social media accounts can be problematic, there is no reason you have to create new posts that can be used against you in Court. It is best to consult with your divorce attorney before you make any unilateral decision about deleting your Facebook account.

Gatto v. United Air Lines, Inc., No. 10-CV1090-ES-SCM, 2013 U.S. Dist. Lexis 41909 (D.N.J. Mar. 25, 2013)
Gatto was found to have caused “spoliation” of evidence by intentionally deleting his account and the jury was instructed it could draw an adverse inference from such action.

Can Facebook messages be subpoenaed?​

Facebook’s official policy per their website is that Federal law does not allow private parties to obtain account contents (ex: messages, Timeline posts, photos) using subpoenas. See the Stored Communications Act, 18 U.S.C. §2701 et seq.” – Facebook goes further in stating on their site that users have the ability to download their own content to provide to third parties.

Even if Facebook responds to a subpoena in a limited capacity they, generally charges a mandatory processing fee of $500 per account, $100 for notarized declaration from the custodian of records, along with a valid State or Federal Subpoena which must be served on Facebook.

Facebook generally will only provide a “neoprint” containing certain user information or a “photoprint” containing pictures uploaded by the user. Since Facebook is unlikely to provide everything such as messages, it would be best to require the user to download the entire Facebook profile via a discovery request. Issuing a subpoena directly to Facebook for a complete profile will likely be expensive and met with fierce resistance. See the Crispin case from above.

Facebook can either be deactivated or deleted

​You may be able to determine whether a profile is merely deactivated if the user still appears on the friends’ lists of other users. If an account has been deleted you must act fast to preserve evidence as Facebook will keep the user’s content on their servers for a period of 30 days, with some backup information kept for 90 days. If information if ultimately lost then your only remedy may be recovery of shared content via a “friends” profile.