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Social Networks Subject To Discovery

By: Eric Sinrod an attorney in the San Francisco office of Duane Morris LLP As you post communications, photos and videos on Facebook and MySpace, do you ever wonder if social networks are subject to discovery in litigation? Well, you should, as one recent court decision indicates.

In the case of Romano v. Steelcase, a New York judge ruled that defendant Steelcase was entitled in discovery to access the plaintiff’s current and historical Facebook and MySpace pages and accounts, including previously deleted information, on the basis that information to be found there could prove to be inconsistent with her claims of injuries and loss of enjoyment of life. The plaintiff alleged in her lawsuit that she fell off a defective Steelcase chair, which led to permanent injuries, pain, loss of enjoyment of life, and multiple surgeries. Steelcase contended that public portions of her Facebook and MySpace pages revealed that she had an active lifestyle, including travel, and it wanted further access to her social networking information, which the plaintiff refused.

The judge agreed with Steelcase. He noted that the plaintiff’s public profile page on Facebook showed her smiling happily outside of her home, which was inconsistent with her claim that she was largely confined inside her house in bed. He thus concluded that other parts of her social networking pages might contradict her claims. This may seem a bit harsh. Even someone who is bed-ridden in pain could have a photo taken of him or her outside of the home. On the other hand, that may not be a basis to refuse discovery. It could go more to the weight of the evidence, which could be explained at trial.

The judge also ruled in favor of Steelcase’s discovery requests because “the primary purpose” of social networking sites “is to enable people to share information about how they lead their social lives,” notwithstanding how they “self-set privacy controls” on such sites. This conclusion was buttressed for the judge by the fact that both Facebook and MySpace state explicitly on their sites that they cannot guarantee the privacy of users’ posted content.

So, let there be no mistake, it certainly is possible that communications and materials posted on social networking sites can be fair game for discovery in litigation. Of course, that does not mean that judges always will grant discovery requests in this area. If the relevance of the information sought is too attenuated, then the burden, intrusion, and privacy interests involved might outweigh the probative value of the information. Nevertheless, word to the wise – think twice about what you do or say on social networking sites. Living life out loud can have consequences.

Facebook is Primary Source for Compromising Information

Facebook is Primary Source for Compromising Information

Chicago, IL, February 10, 2010— If your status is separated or going through a divorce, you might want to stay off Facebook. An overwhelming 81% of the nation’s top divorce attorneys say they have seen an increase in the number of cases using social networking evidence during the past five years, according to a recent survey of the American Academy of Matrimonial Lawyers (AAML). Facebook holds the distinction of being the unrivaled leader for online divorce evidence with 66% citing it as the primary source.

“Going through a divorce always results in heightened levels of personal scrutiny. If you publicly post any contradictions to previously made statements and promises, an estranged spouse will certainly be one of the first people to notice and make use of that evidence,” said Marlene Eskind Moses, president of the AAML. “As everyone continues to share more and more aspects of their lives on social networking sites, they leave themselves open to much greater examinations of both their public and private lives in these sensitive situations.”

Overall, 81% of AAML members cited an increase in the use of evidence from social networking websites during the past five years, while just 19% said there was no change. Facebook is the primary source of this type of evidence according to 66% of the AAML respondents, while MySpace follows with 15%, Twitter at 5%, and other choices listed by 14%.

Divorces Once Again On The Uptick

Divorces once again on the uptick
Star Tribune August 16, 2010

After a recession-related flat period, divorces are on the rise now that some can afford to split up. Others are calling it quits because, for them, the recession is the “new normal.“

As the recession seems to be loosening its grip, so apparently are married couples who had put their divorces on hold.

Divorce rates have declined in Minnesota and nationwide over the past few years, primarily because people couldn’t afford to separate. But experts are seeing the numbers go up –one Twin Cities divorce attorney is “swamped” –as the economy struggles to recover. Others whose financial situations haven’t improved are also deciding to split up because they at least want emotional happiness.

Marlene Eskind Moses, president of the American Academy of Matrimonial Lawyers(AAML), said it’s too soon for collective national numbers, but she is hearing from members seeing an increase because the current economy is “the new normal.””With the recession, there was initial shock that paralyzed people. They were frozen, not wanting to make any more significant changes in their lives. They weren’t any happier than before, but too afraid to do anything about it. Now people are stabilizing, acclimating themselves to the new economic realities, and saying, ‘Things may not change soon, but at least I can havea happy life on an emotional level.'”

Area divorce attorneys who have seen an uptick after a slack period include Michael Dittberner, who practices in Edina.

“People are either now able to move forward or just can’t put it off any longer,” he said. “They have issues related to their children or are trying to protect themselves financially.”

Andrea Niemi, a Minneapolis attorney whose focus is on alternative dispute resolution, has seen a spike in early neutral evaluations, which are requested within about two months of a couple’s divorce filing

.”I was twiddling my thumbs a year ago and now I’m swamped,” she said. The state’s most populous county saw a noteworthy increase in the first four months of 2010.

Compared with the same period in 2009, Judge Tanja Manriqueof Hennepin County Family Court noted an 8 percent rise in divorce case filings involving children and a 5 percent increase in filings not involving children.

“These are statistically significant numbers for us,” she said. “Last year, dissolution filings for most months were flat. As the economy starts to rebound, people come to the conclusion they need to go on with their separate lives.”

Jeff Hicken, president of AAML’s Minnesota chapter, said that filings are also up in Anoka County, where he practices. His caseloads and those of several other Minnesota members have risen in the past few months, he said.

Alyssa Saterdalen of Golden Valley did not hold off on getting divorced because of the recession, but it did affect the length of the process.”

Our house was in a short-sale situation and heavily dependent on the market to sell, and we couldn’t move forward,” she said.

The filing decline hasn’t been bad for everyone in the divorce business. Dan Simon, who specializes in mediation, said he has not seen a business slowdown in his practice because “it’s a lower-cost choice.”

Minneapolis attorney Edward Winer of Moss & Barnett sees the recession as an advantageous time for some of his clients to get divorced.”

A business owner or owner of other valuable assets may want to divorce when his assets’ value is at its lowest, because the courts are compelled to use current market value for property settlements,” he said.

While divorce rate fluctuations are often used as economic indicators, Dittberner believes it’s too soon to declare a connection.”

Frankly, housing prices have not rebounded to a level yet that would correlate,” he said. ” I think this is more pent-up demand for divorce than it is, ‘Gee, we’ll be able to pay off the mortgage.’ I don’t think that sense of security is there yet, although prices are moving in the right direction.”