Tuesday, September 21, 2010

Facebook Evidence

According to a fascinating article in the National Law Journal, "Using Social Network Evidence in Family Court," by Mary Kay Kisthardt and Barbara Handschu, the use of electronically stored information as evidence there is on a sharp rise. Specifically, the article states:

The most striking change in the use of electronically stored information in family law cases has been the proliferation of media accounts relating to evidence found on social networking sites such as Facebook and MySpace. In a recent survey conducted by the American Academy of Matrimonial Lawyers, 81% of responders said that they had seen an increase in the use of social networking evidence during the past five years. In fact, the survey cited Facebook as the "unrivaled leader for online divorce evidence," noting that 66% of those surveyed cited it as a primary source.

The authors describe how such evidence is used, and problems that may be encountered. They also discuss the requirements for admitting such information into evidence as set forth in Lorraine v. Markel Am. Insurance Co., 241 F.R.D. 534 (D. Md. 2007). Five hurdles must be cleared:
1. Relevancy
2. Authentication
3. Hearsay
4. Original Writing
5. Probative Value v. Unfair Prejudice

The article closes with advice about social networking sites that family lawyers should consider passing along to their clients.

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