Discovery and social media
Everyone seems to live on their phones and social media these days— Facebook, Instagram, TikTok, Twitter, Whats Ap, YouTube, Snapchat, Messenger, LinkedIn, etc. —posting updates, stories, blogs, videos, you name it. Did you know that this came come back to bite you, though?
In family actions, “[e]xcept for summary actions and except as otherwise provided by law or rule, discovery…shall be permitted…” R. 5:5-1. The discovery standards in the Court Rules are liberal. R. 4:10-2 provides, in pertinent part [p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action…It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence; nor is it ground for objection that the examining party has knowledge of matters at to which discovery is sought. (Emphasis added).
This includes social media. Yes, your social media feeds, posts, photos, messages, friends lists, videos, etc. are all discoverable. Anything posted on a social media platform is “not privileged” within the meaning of the discovery rules and is therefore, fair game. Whether the post, feed, photo, etc. is admissible is besides the point if it leads to the discovery of admissible evidence.
Remember, social media is meant to be exactly that: social. It is a status update, not your diary. Before posting it to social media, stop and think, “would I like this to be read out loud back to me by a judge in court?” If the answer is no, then do not post it, tag it, share, or so forth lest it come back to haunt you.
Julie Burick is a shareholder and partner at Adinolfi, Lieberman, Burick, Roberto & Molotsky, PA in Haddonfield, NJ. She focuses her practice on all aspects of divorce and family law. Julie works hard to find her clients practical solutions to their unique family law issues from child custody and alimony to domestic violence and equitable distribution. No matter whether your matter is complex or straightforward, the firm has the resources to handle your legal issues with compassion and efficiency.