E-discovery: Can I Use My Spouse’s Social Media Posts and Other Electronic Information as Evidence?

Yes and No.  In this age, it is clear that the majority of our communication occurs via electronic communication such as emails, facebook, instagram, snapchat, etc.  Most often your spouse will not send you an email or letter with information that hurts his or her case.  Usually, the best information is hidden in deleted emails and social media posts.


Depending on the issues of your case, if you believe your spouse is hiding information deep in their computer, you can request that they provide a copy of their hard drive downloaded on a disc.  This hard drive would include any information deleted in the last 6 months.  It would also include any deleted emails and internet web searches.  If the information requested is from social media, you can request that that person download their information (facebook has this option under settings) and it will download as a “zip” drive.


You would need to convince a judge that the information you are seeking is relevant.  Absent this very formal request of electronic discovery, you can go on that person’s facebook or other social media profile and print that particular page that you are trying to submit as evidence (i.e. your spouse is throwing money around and claiming he has a lot of money).  If you can access this information because the information is either public or you are their friend on this site (which is the reason I advise to unfriend any spouses or ex-spouses on social media), then there is no expectation of privacy for that particular information.  If you created a fake profile and added this person as a friend or somehow hacked their computer and obtained this information, then that information is not admissible in court.  That person had an expectation of privacy and released that information only to a certain group of people that did not include you.


In a world of applications, a lawyer could also request that the person pull out their phone (most likely a smart phone) and open up their banking application and inform the court the balance of their amount, pull up text messages, open up the TD Ameritrade application with profit-loss statements, and even google maps which would show a history of searches on their gps.  Pictures have saved information as to the date that they were taken and confirm or deny allegations that they were or were not at a certain place at a certain time.  The Ventra application for the Chicago transportation system could confirm where that person traveled and what time.  And even the Starbucks application could show a history of your purchases at a certain location.


In a world where information is now digital, the discovery process must become digital too.  As a result, it is often important to utilize these discovery tools and be creative in order to access information that would otherwise be impossible to obtain.  If you can pinpoint the relevancy of these documents, the judge should order the turnover of this information, or at least provide access to the information so that the lawyer or someone more tech-savy could download and access the requested information.

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