New Jersey Lawyer

Perhaps one of the most critical hot button issues in litigation today is that of social media evidence: how to get it, and how to use it at a plenary hearing or trial. Instagram, Twitter and Facebook are apps found on most practitioners’ phones. That means clients most likely have them too. In recent years, social media evidence has become critically important in family law matters. First, divorcing spouses tend to have access to each other’s social media accounts, or are ‘friends,’ with their spouses, even while separated. This means that social media accounts tend to be easily accessible. Accessibility, however, does not guarantee admissibility. Second, divorcing spouses tend to take on the role of private investigator during divorce proceedings. Often, they spend countless hours searching and researching their estranged spouses, to find the paramour, to find the hidden bank account, etc. Of course, the client wants to use the evidence they found scouring the internet to advance his or her position. Challenges arise when questions are presented regarding authenticity, impersonation, spoofing and similar issues ever present in the digital age.

While most recent e-discovery and social media case law has focused on the preservation and production of electronically stored information (ESI), and sanctions for failures to produce it, the authentication and admissibility of ESI is an equally challenging issue, and a critical one if the desire is to actually use social media evidence to make a case at a plenary hearing or trial. Family law practitioners are challenged every day with the proliferation of social media and electronic evidence ‘discovered’ by their clients. Therefore, it is critical to be able to address authentication and admissibility issues.

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This article was originally published in the February 2018 issue of New Jersey Lawyer magazine, a publication of the New Jersey State Bar Association, and is reprinted here with permission.

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