Introducing Social Media Evidence in Illinois Divorce Cases

By Marie Sarantakis, Esq.

 

As lawyers, in preparing for every hearing, the premise is somewhat the same: we obtain information from our client, make sense of the information within our legal framework, gather evidence, and then determine how we can properly introduce that evidence before the trier of fact in a manner that supports our client’s case.

 

Social media has become an inextricable and common part of our everyday lives. People today often get married and/or get divorced because of their interactions on Facebook, Twitter, and Instagram. Social media is no longer alternate reality, rather it plays a critical role in how individuals communicate, form social and familial bonds, and experience emotions. Therefore, it’s no surprise that evidence from social media pages is becoming an integral part of evidence in domestic relations courtrooms.

 

According to Merriam Webster, social media is defined as a form “electronic communication (such as websites for social networking and microblogging) through which users create online communities to share information, ideas, personal messages, and other content (such as videos).” This broad definition typically includes, but is not limited to, common platforms such Facebook, Twitter, Instagram, YouTube, LinkedIn, SnapChat, Quora, Reddit, Pinterest, Yelp, Flikr, WordPress, Tumblr, Etsy, Goodreads, and Whisper to name a few.

 

Even attorneys who elect not to engage in social media themselves must have a certain degree of competency in these platforms in order to adequately represent their clients in the modern world. As of January 1, 2016, the Illinois Supreme Court amended the Model Rules to specifically clarify that attorneys “should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology”.1

 

All too often, despite a stern warning from their divorce attorneys, clients going through a divorce or separation feel compelled to share their journey of newfound single life in excruciating detail. This action, however, often causes an intentional or unintentional emotional impact upon the clients’ past partners.

 

In such a case, a jilted ex-partner will often immediately save, print, and then share the damning evidence with his or her attorney and then seek to expose and exploit the “slimy ex for the rotten, no-good human being that s/he really is.” It is then up to the attorney to decide (1) whether the evidence is relevant and if it is, then (2) identify the process for authenticating the evidence and laying a proper foundation for its admission during a hearing or trial.

 

Determining Relevance

Relevance generally has a pretty low threshold. Relevant evidence is that which makes any “fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”2 Relevant evidence is generally always admissible with a few exceptions.3 Relevant evidence can be excluded if it is particularly inflammatory, prejudicial, confusing, burdensome, misleading, would cause too much delay, or is cumulative.4 Another way of commonly saying this is that relevant evidence may be excluded if its probative value is substantially outweighed by a likelihood of prejudice.

 

Evidence can be relevant to show a party’s actions, state of mind, geographic location, identity, etc. The most common challenge you will likely face when dealing with the relevance of social media evidence is the scope of the evidence you are requesting and/or seeking to admit. While there may be a party’s social media post in particular that is directly on point with the issue(s) presented in your case, seeking unfettered access to all of an opposing party’s social media records will likely be too broad in scope and will also likely be denied as a fishing expedition. Similarly, a Judge may only allow a narrow subset of evidence on the record which specifically coincides to the issue(s) at hand.

 

In 2017 a civil court in Wyoming very appropriately cautioned litigants on the interplay between scope of records and the risk of prejudice, by stating in its opinion:

 

“Social media presents some unique challenges to courts in their efforts to determine the proper scope of discovery or relevant information and maintaining proportionality. While it is conceivable that almost any post to social media will provide some relevant information concerning a person’s physical and/or emotional health, it also has the potential to disclose more information than has historically occurred in civil litigation.”5


Accordingly, the request for the production of all records may not be unduly burdensome by way of cost or production effort, rather the emotional costs to the litigant may be proportionally too high when revealing unnecessary personal information beyond the scope of the case. The evidence should not be intended to harass or embarrass the other party. It is critical for counsel to be precise in their requests and limit the use of evidence to that which is directly targeted to their case.

 

What Type of Social Media Evidence is Relevant in Divorce Cases

Before enlisting the Court’s assistance in determining relevance, you, as a family law practitioner, will need to make a preliminary assessment as to whether this information would be beneficial to your legal argument. Often times what a client may believe to be relevant, usually exposing a spouse in a less than flattering light, may not be relevant legally nor help them achieve a desired outcome in their case. As a lawyer, you need to dissect the information and you are responsible for helping your client understand that what may be of critical importance to their family and friends, may not be a smoking gun in a court of law.

 

For example, to many clients, it may be shocking to realize that evidence of an affair, in and of itself, may not always be relevant. As of January 1, 2016, Illinois became a no-fault state and couples seeking divorce do so under the umbrella reason of “irreconcilable differences.”6 The previous notions of grounds, such as impotence, adultery, abandonment, mental cruelty, and a host of other reasons which went to show one spouse was at fault, have gone by the wayside. That means that even if a spouse engaged in an extramarital affair, the affair itself is not a relevant issue that comes before the court. Rather what can still be of issue is introducing evidence of the affair in order to make a showing of dissipation of marital assets.7

 

Dissipation is the “use of marital property for the sole benefit of one of the spouses for a purpose unrelated to the marriage at a time that the marriage is undergoing an irretrievable breakdown.”8 Classic examples of dissipation include spending money on a paramour9, gambling10, and the destruction of marital assets.11 So if your client’s spouse posts a photo with their new love interest showing off their new matching jewelry at a casino in St. Bartz to celebrate their one-year anniversary, your client is the one who hit the proverbial legal jackpot. (No pun intended.) Hiding behind the veil of social media makes it so much easier to engage in, or sometimes even show off, the darker sides of human behavior.

 

Evidence of an affair is not relevant but dissipation of marital assets is. In a similar manner, while we don’t typically introduce evidence regarding a spouse’s character and judgment, such evidence may be introduced if it pertains to the safety and wellbeing of the parties’ children. For example, if a parent is engaging in behavior which may seriously endanger the children or if they are acting in a way that may show
parenting time with them would not be in the best interest of the children, that evidence may be pertinent and introduced in a hearing before the court.

 

Another possibility is that there may be court orders in effect stating what a party may or may not do. If one of the litigants clearly violates the court’s order or the parties’ judgment, and then subsequently posts proof of same on Facebook, this may be perfect supporting fodder for your client’s Petition for Rule to Show Cause.

 

It’s your job as the attorney to take the information that you have and determine whether it fits into the framework of the case. Then you have to decide whether the judge can make a threshold determination as to whether the evidence could reasonably be what it purports to be.12 If the nature of the post has some bearing on an issue in the case, and a litigant authored the post, it will generally be relevant. However, the most common issue that arises is a dispute over who actually authored the post. This is where authentication comes in.

 

Authentication of Evidence

The greatest challenge attorneys face when trying to admit social media evidence is authentication and establishing the foundational proof necessary for admission.13 The concept of authentication is pretty straightforward. That is, “is the evidence really what the proponent claims it to be?14

 

The simplest way to authenticate social media evidence is through witness testimony. Illinois Rule of Evidence 901(b)(1) indicates that a witness with knowledge can authenticate evidence and provide a foundational basis for same. Ideally, a witness with knowledge would be the person who created the post admitting that they created the post. If the author admits s/he created the post and you go through the details of it on the record, things such as the platform which it was posted on, the time and date of the post, and its content, you would be all set.15 However, as attorneys we have become painfully aware that things in the courtroom are not always that easy. All too often, witnesses, no matter how obvious it is they created a post, will be obstructionists and fail to admit it.

 

Following a witness denial you can continue to question this witness as to the circumstantial evidence which would lead the trier of fact to believe that this is the author. For example, if the witness acknowledges that a piece of paper appears to be a printout from his Facebook page, further acknowledges that it is his name and picture, but then denies that it is his post. By doing so, he is seemingly asserting that someone must have created a fake profile pretending to be them or someone hacked their account. In response, you may now need to get creative in your questioning and ask things about the contextual clues and distinctive indicators on the post, the account holder’s access to the account, and/or whether the author acted in accordance with the post’s message. For example, did the post contain specialized knowledge that only the witness would have? If so, specialized knowledge would satisfy a prima facie showing.16

 

If the authorship of the post is relevant, then you can also question other potential witnesses who interacted with the post so as to confirm the identity of the author. Did other witnesses receive any feedback from the author which would corroborate or confirm the identity of the author? However, generally speaking, if the author denies the post, and the other party seeks to introduce the post as being authored by the opposing party, if the only evidence of authorship is the sole testimony of the person who downloaded and/or viewed the social media, in and of itself, without any additional corroboration then it is likely going to be found to be insufficient.17 That is because testimony about what another individual has said could readily be dismissed as hearsay. That would not be the case, however, if a witness saw the author writing the post, and that witness could then testify as to what s/he observed.

 

Another potential witness is perhaps a forensic expert who could testify as to what he discovered on a particular individual’s device; however, there are privacy issues to contend with here, so the instances where this type of testimony would be appropriate are extremely rare.

 

If the author denies the post and there are no other sufficient witnesses, there are alternative methods to proceed with authentication. You can compare specimens of evidence with other evidence which has been admitted.18 Perhaps you can have the supposed author witness admit to their other social media posts, have those introduced into evidence, and then compare the post you are attempting to admit to those other posts showing that they are consistent in style, nature, placement, form, and any other nuances, which may allow the trier of fact to conclude the author could be the same, thereby allowing admission.

 

Our Illinois Rules of Evidence were specifically amended on September 17, 2019 to include the assessment of distinctive characteristics in electronic communications.19 You can and should also point out any distinguishing characteristics which are consistent with the purported author. You want to look at a person’s grammar, salutations, punctuations, and all of those types of details to show consistency, much as you would handwriting. You can also look at circumstantial evidence such as the e-mail address which is connected with the social media account at issue and compare it to the internet protocol address (commonly referred to as an “IP address”) of the supposed author’s computer. You can compare the two and the relationship may be sufficiently indicative of the author’s identity.20 While the Illinois Rules of Evidence clarify that witness testimony and distinctive characteristics are by no means the only ways of satisfying authentication, these are routinely accepted methods.21

 

Self-Authentication

You may be wondering if there is an easier way. What if you know that the author is going to deny the post? Can you try to argue that the records should be self-authenticating? Generally speaking, self-authenticating records, such as certified records that come in are a result of regularly conducted business activity,22 generated by an electronic process or system,23 or data copied from an electronic device, file, or storage medium,24 so long as accompanied by a written certification from a qualified custodian of the records are presumed to be authentic and may not require corroborating testimony or distinctive characteristics.

 

On September 28, 2018, the Illinois Supreme Court effectuated an update to Rule 902 of the Illinois Rules of Evidence, in order to take into account the increasing use of digital evidence and how it can be self-authenticated.25 Illinois Rule of Evidence 902(13) specifically states as follows:

 

“(13) Certified Data Copied from an Electronic Device, Storage Medium, or File. Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent also must meet the notice requirements of Rule 902(11).”

 

Thus, the rule requires someone with specialized digital knowledge of the record to certify that the record is a precise duplication of the original content, but their testimony is not required. An affidavit responsive to a subpoena would therefore be sufficient.

 

Under this premise, you would think that if you subpoena Instagram and receive a photograph you wish to admit into evidence, it would be authenticated so long as Instagram’s record-keeper certified that it was “(A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of these matters; (B) was kept in the course of the regularly conducted activity; and (C) was made by the regularly conducted activity as a regular practice.”26 While it may seem more efficient to just obtain the records directly from the source, and not worry about an adverse witness denying a post, there are some challenges and consequences that you may face.

 

First, the federal Stored Communications Act (hereinafter referred to as the “SCA”) generally prohibits civil attorneys from obtaining social media content. By issuing a subpoena to a provider, you may be able to confirm that an account belongs to someone and some corresponding metadata, but you will not likely be able to obtain the content that is posted on the page. The update to Rule 902 states essentially that limited information that the social media platform does tender may be self-authenticating without any testimony from an agent of the service provider themselves.27

 

Keep in mind that, even when making a request that is in compliance with the SCA, you may deal with resistance from social media platforms to tender any information whatsoever. For example, many social media entities are based in California, so they may give you the added run-around of demanding a local subpoena.

 

Even assuming an attorney is able to comply with any necessary logistical barriers, attorneys should be extremely careful if subpoenaing social media records and familiarize himself with the SCA prior to doing so. Improperly obtaining information, in violation of the SCA, could expose an attorney to the possibility of sanctions and liability.28 An exception is that the user could provide you with written consent to obtain the records directly from the provider.29 However, consider that Facebook has explicitly cautioned that it will not comply with subpoenas even if accompanied by a written consent of the page owner.30

 

Moreover, when intending to use this evidence, you still need to provide the opposing party with proper notice under Illinois Rule of Evidence 902(11). If you intend on introducing such records, you need to provide the other side with ample written notice and a reasonable opportunity to inspect the records.31 Even after having done this, you could still risk the other side’s objection, and now you spent valuable time and resources obtaining information that may not be introduced and will likely still be denied by the authoring witness.

 

Obtaining the Evidence

If you are the one trying to obtain digital evidence, you need to familiarize yourself with SCA’s limitations. The SCA forbids the disclosure of the substance of the message.32 Facebook specifically cautions that, “Federal law does not allow private parties to obtain the content of communications (example: messages, timeline posts, photos) using subpoenas.”33 What attorneys can still obtain directly from the provider is information such as the date/time of the posting, the originating device, and basic account information. Another exception to the SCA is certain information which is public, rather than that which is hidden from a segment of the population by privacy settings.34 Either way, you need to be extremely cautious if issuing a civil subpoena to a social media provider.35

 

A wiser alternative is seeking the information directly from the litigants themselves through the tried and true discovery mechanisms. You can send a traditional “Request to Produce Documents” under Illinois Supreme Court Rule 214. Alternatively, you can also send a “Request for Admission of Genuineness of a Document”36 and attach the printout of the post to your request. Regardless of your method, the best way to obtain social media evidence is directly from the owner of the social media profile themselves. Companies such as Facebook, LinkedIn, and Twitter, have developed simple ways for the users themselves to download their own account history and data in order to avoid being in the midst of litigation as third parties. The users themselves can then tender the records to opposing counsel in response to a discovery request. The onus therefore turns to the user to turn over discovery to the other side.

 

The problem with simply printing out and trying to use a post from the person’s page is that the printout lacks any metadata. The critical issue with a basic screenshot is that the person objecting could claim that someone created a fake profile of them, photoshopped the image, or logged into their account. If the only thing you have to work with is a printout, ideally at minimum it should have the full website URL and include date with timestamp of print and capture. While static images of posts are not ideal, they often are sufficient to be introduced as evidence when accompanied by a witness’ testimony. Absent corroborating testimony or factors, a mere printout is generally going to be insufficient.37

 

As a lawyer, whatever you do, don’t go on social media pretending to be someone else to obtain data through unauthorized means. Inappropriately accessing someone’s online data could be a violation of the SCA38 or the Illinois’ Rules of Professional Conduct. For example, you cannot make contact with the opposing party in a matter if they are represented by counsel.39 Sending them a Facebook friend request could be a form of direct contact. If you create a fake profile, you are still violating this rule, but now have the added concern of the contact being based in fraud and misrepresentation, another potential violation of the Illinois Rules of Professional Conduct.40

 

Preserving the Evidence

If you know that the other side has posted something particularly useful to your case online, and they have the ability to hide, edit, or remove the post altogether, you should send a preservation letter to opposing counsel. Conversely, if it is your client who created the post, or it is posted on a page they have access to, it is imperative that you instruct your client not to tamper with the post at issue as this can be discovered through electronically stored information, often referred to as “ESI.” ESI can include geographical data, lists of followers/fans, time and date of a posting, modifications to a posting, etc. The duty to preserve evidence begins once a litigant knows or has reason to believe certain evidence may be relevant to actual or reasonably anticipated litigation.41 If your client deletes pertinent evidence at issue in the case, they may have caused the spoliation of evidence which can bear some serious sanctions and consequences. Remember the old adage: it’s never the scandal; it’s always the cover up.

 

Conclusion

Ideally, once you know that social media evidence is going to be a part of your case, try to get the opposing party to stipulate to its admission. If they refuse to do so, you will need to coordinate your responsive strategy. What types of questions will you ask the opposing party? Are there corroborating witnesses? Do you need to obtain additional records and certification of same? Familiarize yourself with the Illinois Rules of Evidence and begin to anticipate the challenges you will face when the witness in on the stand.

 

Irrespective of what type of law you practice, the prevalence of social media evidence should not be underestimated. It is important to keep in mind that social media evidence is usually treated much like any other type of evidence, especially in Illinois domestic relations courtrooms. All of the other rules of evidence still apply, including those relating to relevance, authentication, hearsay, etc. However, social media evidence comes with its own set of challenges, especially due to its nature to be dynamic, fluid, controlled by the third party, and has a heightened risk of being manipulated. Counsel need to affirmatively remain abreast of developments in the law and technology in the ever-evolving landscape of social media evidence.


1. Illinois Rules of Professional Conduct Rule 1.1 Comment [8]

2. Illinois Rule of Evidence 401

3. Illinois Rule of Evidence 402

4. Illinois Rule of Evidence 403

5. Gordon v. T.G.R. Logistics, Inc., 321 F.R.D. 401, 403 (D. Wyo. 2017)

6. 750 ILCS 5/401

7. 750 ILCS 5/503

8. Marriage of O’Neill, 138 Ill.2d 487, 150 Ill.Dec. 607, 563 N.E.2d 494, (1990)

9. In re Marriage of Dunseth, 260 Ill. App. 816 (4th Dist. 1994); In re Marriage of Meadow, 256 Ill. App. 3d 115 (1st Dist. 1993); In re Marriage of Frey, 258 Ill. App. 3d 442 (5th Dist. 1994); In re Marriage of Vehlein, 265 Ill. App. 3d 1080 (1st Dist. 1994)

10. In re Marriage of Sobo, 205 Ill. App. 3d 357, 562 N.E.2d 1083 (1st Dist. 1990); In re Marriage of Morrical, 216 Ill. App. 3d 643, 576 N.E.2d 465 (3d Dist. 1991); In re Marriage of Hagshenas, 243 Ill. App. 3d 178 (2nd Dist. 1992)

11. In re Marriage of Ferkel, 260 Ill. App. 3d 33, 632 N.E.2d 1133 (5th Dist. 1994)

12. Illinois Rule of Evidence 104

13. Paul W. Grimm, Lisa Yurwit Bergstrom & Melissa M. O’Toole-Loureiro, Authentication of Social Media Evidence, 36 AM. J. TRIAL ADVOC. 433, 439 (2013)

14. Illinois Rule of Evidence 901(a)

15. In re Marriage of Miller, 2015 IL App (2d) 140530, 40 N.E.3d 206 appeal denied, 39 N.E.3d 1002 (Ill. 2015)

16. People v. Downin, 357 Ill.App.3d 193, 203 (3rd Dist. 2005)

17. Moroccanoil, Inc. v. Marc Anthony Cosmetics, Inc., 57 F. Supp. 3d 1203 n.5 (C.D. Cal. Sept. 16, 2014); Linscheid v. Natus Med. Inc., No. 3:12-cv-76-TCB, 2015 WL 1470122, at *5–6 (N.D. Ga. Mar. 30, 2015); and Monet v. Bank of America, N.A., No. H039832, 2015 WL 1775219, at *8 (Cal. Ct. App. Apr. 16, 2015).

18. Illinois Rule of Evidence 901(b)(3)

19. Illinois Rule of Evidence 901(b)(4)

20. People v. Kent, 2017 IL App (2d) 140917, ¶ 58

21. Illinois Rule of Evidence 901(b)

22. Illinois Rule of Evidence 902(11)

23. Illinois Rule of Evidence 902(12)

24. Illinois Rule of Evidence 902(13)

25. Bellas, George. Self-authentication of Digital Records: New Illinois Rule of Evidence 902(13). ISBA Section on Civil Practice & Procedure Trial Briefs. December 2018. Vol. 65. No. 5.

26. Illinois Rule of Evidence 902(11)(A-C)

27. United States v. Hassan, 742 F.3d 104, 133 (4th Cir. 2014)

28. 18 U.S.C. § 2701(a); 18 U.S.C. § 2701(b); and 18 U.S.C. § 2707(a).

29. 18 U.S.C. § 2702(b)(3).

30. Facebook.com. (2019). May I obtain any account information or account contents using a subpoena? | Facebook Help Centre | Facebook. [online] Available at: https://www.facebook.com/help/133221086752707?helpref=uf_permalink [Accessed 17 Nov. 2019].

31. Illinois Rule of Evidence 902(11)

32. 18 U.S.C. § 2702(c)(6)

33. Facebook.com. (2019). May I obtain any account information or account contents using a subpoena? | Facebook Help Centre | Facebook. [online] Available at: https://www.facebook.com/help/133221086752707?helpref=uf_permalink [Accessed 17 Nov. 2019].

34. Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965, 991 (C.D. Cal. 2010)

35. It is worth noting that the SCA operates very differently in criminal cases. There is an exception which allows government entities to obtain information from social media websites when a warrant is issued. 18 U.S.C. § 2703(a).

36. Illinois Supreme Court Rule 216(b)

37. Campbell v. State, 382 S.W.3d 545, 550 (Tex. App. 2012) and Commonwealth v. Purdy, 459 Mass. 442, 945 N.E.2d 372, 381 (2011)

38. Electronic Communications Privacy Act (“ECPA”) Title II-Stored Communications Act 18 USC 2701-2712

39. Rule 4.2 of the Illinois Rules of Professional Conduct

40. Rule 8.4(c) of the Illinois Rules of Professional Conduct

41. Dardeen v. Kuehling, 213 Ill.2d 329, 335-36 (2004)