Episode 69 - Can Social Media Equal Legal Suicide in a Divorce?
According to the American Academy of Matrimonial Lawyers, 80% of family law attorneys use social media as evidence in their divorce and family law cases. Many people are shocked and just how much information our social media apps record about our every move. Often they don't discover the full extent . . . until it is used against them in Court. In this show, we explore what kind of information can be obtained through social media and how it might be used to help you or hurt you in Court.
Todd Orston: Facebook, Twitter ... I'm sure there's a bunch.
Leh Meriwether: Instagram.
Todd Orston: Instagram.
Leh Meriwether: Pinterest.
Todd Orston: Under normal circumstances, they're great. They're fun. You can communicate with others. You can socialize. You could do all sorts of great things. You can talk about trips. You can talk about your adventures and things like that, but when you're dealing with a divorce, Facebook and the like is not your friend. Let me repeat, Facebook is not your friend. I can tell you right now, the information put into these applications, not just sometimes, but a lot of times, is gathered and used against people in the context of a divorce.
Leh Meriwether: I can agree with that 110%. It's not just divorce cases. It's personal injury cases, Worker's Comp cases. It is amazing how dangerous social media is when you're in the middle of some form of litigation.
Leh Meriwether: Welcome everyone. I'm Leh Meriwether, and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether & Tharp, and you're listening to Meriwether & Tharp Radio on the new Talk 1067. Here you'll learn about divorce, family law, tips on how to save your marriage if it's in the middle of a crisis, and from time to time, even tips on how to take your marriage to the next level. If you want to learn more about us, you can always call or visit us online at atlantadivorceteam.com. If you couldn't tell from Todd's introduction-
Todd Orston: I can repeat.
Leh Meriwether: We're going to be taking-
Todd Orston: I was dancing around the issue a little bit.
Leh Meriwether: We're going to be digging into social media. We're going to talk about all kinds of interesting things that we've seen in cases just so if you're in the middle of some kind of litigation, whether it's family law, divorce ... those examples are going to come from there, but any kind of litigation or potential litigation, you are going to want to listen up. I'm not going to be doing a lot of the talking this time.
Todd Orston: Thank God. I swear, that's the first piece of good news I've gotten in a long time.
Leh Meriwether: Todd, since our guest-
Todd Orston: We have a guest?
Leh Meriwether: Yes.
Todd Orston: Surprise.
Leh Meriwether: You're the one who invited her. She's from your office.
Irena Chernova: Honestly, I just invited myself. Just showed up.
Todd Orston: She wandered in. Why don't you introduce our guest?
Leh Meriwether: With us today is Irena Chernova. Did I say that right?
Irena Chernova: Yeah, Chernova, like Chernobyl.
Leh Meriwether: Chernobyl. You're from Russia.
Irena Chernova: I am originally, hence, the accent.
Todd Orston: I was about to say, heavy Russian accent.
Leh Meriwether: Irena is a recent member of Meriwether & Tharp. Welcome to the team.
Irena Chernova: Thank you.
Leh Meriwether: We are so excited to have you here. She actually used to be opposing counsel on some cases, and so did you, Todd.
Todd Orston: That's the best way to find people, right?
Leh Meriwether: That's right.
Todd Orston: When somebody does a good job, or in my case, a mediocre job, whatever.
Leh Meriwether: Anyways, Irena came to us last week or the week before, the week before last, and said, "I'd love to do a show about social media because I like to stalk people on social media. I'm really good at it."
Irena Chernova: In the non-criminal way. Just a disclaimer.
Leh Meriwether: We said awesome.
Todd Orston: It's important.
Leh Meriwether: It is important, and I know that when we were talking earlier today before we came on the show, you actually told me stuff I didn't even know about social media, not that I'm that knowledgeable about social media, but as far as the information that we can glean from it. Share with our listeners just a little bit, from the family law standpoint, what lawyers are doing with social media and how they're using it in cases.
Irena Chernova: Sure. The first thing I usually do just personally is whenever I get a case, and there's an opposing party, I look them up on Facebook. A lot of times their profiles aren't private. People post a lot of things that you used to have to get a PI to basically find maybe they post what they're doing, when they're doing it, who they're doing it with. It's very easy to find information.
Irena Chernova: Actually, the American Academy of Matrimonial Lawyers did a study a few years ago that says about 80% of family law attorneys are using social media evidence right now. There's a special feature you can request when you're requesting information from Facebook where you can a download of someone's Facebook data that has all of these things that you don't even think could be discoverable or could be found by someone else like deleted posts or searches, like what you searched for on your Facebook profile.
Leh Meriwether: That's something I didn't know you could find out from the download.
Irena Chernova: Things like that or sites that you visited, things that you liked, people posting things about you and tagging you and that you may have taken down.
Leh Meriwether: If you had searched for ... I guess it would go to a custody issue ... no, an adultery issue if you were searching for ... There was also something you told me that I didn't know. You said there's groups on Facebook that cater to ...
Irena Chernova: I don't know this personally, but I know there's groups-
Leh Meriwether: I wasn't trying to say it that way.
Irena Chernova: There's groups out there of married people seeking relationships. There's all these underground networks. There's certainly, I'm sure, private, hidden groups on , but you have to search to find them. If someone is trying to prove something, like adultery was the dissolution of the marriage, it's really hard to prove that. That's great proof to have someone searching for a married, swinging social groups on Facebook while they're happily married with wife and kids. Kind of a smoking gun.
Todd Orston: Going back to the study that was done, I can tell you, I think I can speak for both Leh and I, we have repeatedly used social media posts, evidence gotten from those types of applications and what have you, in cases. We have used it to defend our clients. We have used it to prove that the other party is engaged in some level of wrong-doing. I actually believe 80% is probably low at this point.
Leh Meriwether: That number actually sounds low.
Irena Chernova: It's probably higher.
Todd Orston: I bet you every single attorney in our firm, and we have a lot of attorneys, has handled a case where social media evidence became relevant.
Irena Chernova: Of course. There's obviously the message feature is probably the most used. The Facebook messages are just as admissible as a text, and probably more accurate because of the time stamping. Plus, there's also a timeline of your location. If you're checking into places or if your location is on Facebook, sometimes Facebook will check you into places. You have a timeline of where you were at what time.
Irena Chernova: Say you're out at a bar at midnight on a Wednesday. You want custody of your kids that you're having parenting time with on that Wednesday. It brings up the question of who's watching your kids, and why are you out drinking when you're wanting primary custody of children.
Todd Orston: The pictures with you with shots in each hand probably aren't going to be good evidence for you either.
Leh Meriwether: The download, does that include the Facebook messenger too?
Irena Chernova: Yes. It includes all of your messages, all of the pictures that you've posted, any videos that you've posted. If you have a private group of your own, for example, also, with some kind of misconduct, some kind of crazy thing that you're doing that may be out of the norm and doesn't really reflect great on your character, and you're administrator of that group, pulls up a list of any groups you're an admin of.
Leh Meriwether: Do you know, if someone goes in there and says, somebody's listening to this, "I need to delete my Facebook account now," can you still get access to that information if someone deletes your Facebook account?
Irena Chernova: There's two ways of doing it. Facebook's policy actually says that some information may still be recoverable, I believe, back as far as about 90 days after they delete it. Other people also go inactive instead of deleting the account. At that point, you can reactivate the whole thing and recover it. You're technically not supposed to delete your Facebook account after you enter litigation because that's spoliation of evidence. You can sanctioned for that.
Leh Meriwether: I know that the court ... this goes at every single case, whether it's federal court, state court, if a judge thinks that you destroyed evidence in order to avoid something bad coming out, the court can interpret it, you meant to hide the fact that you were hiding money. The court can just make its own conclusion. The problem is the court's conclusion can be worse than what you were trying to hide.
Irena Chernova: Exactly. It definitely will be used against you, presumption that you're trying to hide the smoking gun.
Leh Meriwether: Definitely don't want to do that. What else should our listeners know about social media?
Irena Chernova: Definitely, it's not even what you post, too. You have to be careful what your friends post. I know some former clients or other people who are out there might say, "I unfriended my ex-wife, and I unfriended my ex-husband. They're not friends with me anymore, so they can't see my stuff. It's fine. I can post about them. I can post about myself. I can do anything I want."
Irena Chernova: The problem is, when you have a divorce case or even a post-divorce, some kind of modification, you have mutual friends that may not be as friendly towards you as you thought. Those people are probably telling your ex-partner who is telling their attorney. Also, a lot of times you can Google people and just pull up social media profiles, like your whole Twitter. Unless you've privatized your Twitter as available on social media, which I found out after college. I Googled myself because I was trying to find a job after undergrad and realized my entire college Twitter was just out there and available, which wasn't great. It's something to look out for. You really need to figure out-
Leh Meriwether: Hang on a minute, I'm checking my Twitter account.
Irena Chernova: You have to figure out what's public and what's private, obviously, when you're looking at your accounts. Obviously, just be careful what you're posting. Don't post at all, would be my suggestion. Just hit pause.
Todd Orston: I agree. I'm not ignorant totally of how social media works, but I'm not one of the experts. There are times that I just don't even understand. There are times where I'll start getting posts from someone, I've never taken steps to friend them, and now all of a sudden, I'm getting their posts. I'm assuming they're getting my posts. Clearly, it came from a mutual connection. You have to be very careful that if you put it out there, you have to assume it's going to get into the wrong hands.
Irena Chernova: Absolutely. Once it does, you can't really go back. It's out there. It's set in stone.
Leh Meriwether: What's not set in stone is the show. We'll be right back. You don't want to miss what else we're going to talk about. Welcome back, everyone. I'm Leh Meriwether and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether & Tharp. You're listening to Meriwether & Tharp Radio on the new Talk 1067. If you want to learn more about us, you can always call or visit us online at atlantadivorceteam.com. It's not just Todd that's with me but also Irena Chernova. Did I say that right?
Irena Chernova: You did, Chernova, Chernova.
Leh Meriwether: Chernova, Chernova. I am just terrible with names. She's going to kick my butt here in a second or stalk me on the social media. That's actually what we're talking about. We're talking about social media. It turns out Irena is excellent at stalking people on social media. She uses it to her advantage in litigation. I'm being silly here. In all seriousness, she actually has learned a lot about social media, Facebook. We thought it would be best to bring her on the show and go into this so that people are aware before they get into litigation or during litigation, how careful they must be with social media. By the way, I wanted to add one more thing: If you want to read more about Irena, she is also on our website.
Todd Orston: We've been talking about how this type of evidence, evidence received or obtained through channels like ... social media channels, how that can be used to your detriment, how it can be used against you. You act a certain way, you engage in certain behavior, you say certain things, it absolutely can come back and bite you.
Todd Orston: Now, let's spend this segment, let's talk about it specifically in the context of custody issues. Whether you are in the middle of a divorce, and there is a disagreement as to primary custody, secondary custody, if it's a modification case, contempt issues, whatever the case might be, if it has to do with custody, Irena, how can this type of information impact the findings of a court as it relates to custody?
Irena Chernova: It can have a huge impact, especially in custody cases because so many factors are at issue. Your entire character as a person is at issue in a custody case when it comes to your kids: how stable you are financially, mentally, emotionally, how good of a parent you are, how you treat the other parent, and the way you make decisions. You have to be a good, responsible adult.
Irena Chernova: Unfortunately, now in the days of social media, Facebook and Twitter, people are forgetting that this is a public forum. They're just spewing out all these details of their life that may not be that beneficial to them in a custody case, especially when it comes to co-parenting. That's a huge factor, encouraging this positive relationship with the other parent. If you're blasting this person on your Facebook profile, and posting nasty statuses or mean things about them, that comes into the courtroom. It shows the judge that you may not be that great at co-parenting or basically encouraging a relationship with your child and that other parent.
Leh Meriwether: There's two things I wanted to piggyback off that. One was that some people will say, "I made my Facebook private. It's not public. It's private. It's an invasion of my privacy to have to turn this stuff over." I know that the courts, in every kind of case, have said, "No." I've seen them even order people to turn over passwords so other people can get into ... opposing sides can get into their Facebook accounts and go through them.
Leh Meriwether: The other thing was that it doesn't have to be one specific thing that someone says. It could be a pattern of behavior that they see through the course of the post. They can see a pattern of behavior. The person could say, "Look, I'm not really like that around my wife or my husband. I just say that on Facebook." The judge can easily say, "If you're willing to say this in a public forum, you could be saying it around your children. Your children could be behind you watching you post this. I'm not taking your word on this. If you're willing to post this on Facebook, you're probably not being a good co-parent."
Todd Orston: We see that evidence come out all the time. The issue of co-parenting, being able to work together, that becomes a very important issue for the court when dealing with custody issues. We'll see people all the time, "I absolutely can work well with the other party. I absolutely will co-parent well. We'll work together." Then you look at post after post after post after post after post of he's a jerk, he's a this, she's a this, he's a that, da-da-da-da-da. You have to understand that all the court is going to see and hear is those types of statements. He's a jerk, she's a this, she's a that.
Leh Meriwether: You're using the this and the that to substitute for bleeps. There's stuff we cannot say on the radio.
Todd Orston: Absolutely. You have to understand that that kind of repeated behavior, even if the bleeps are not that bad, if it's a recurring practice of saying demeaning, negative things, just taking jabs at the other party, if all of that, if a pile of that gets presented to the court at the same time that you're sitting there going, "No, no, no, I want to co-parent. I want to work well with the other party," the court is probably not going to believe you.
Leh Meriwether: Irena, tell us other things that people listening need to know about the impact social media can have on them in a custody dispute.
Irena Chernova: I see this sometimes when people separate. You're free. You're separated. You're not divorced. You're going to live it up. You're going to go out with your friends. You're just going to be a free man or a free woman, whichever. You're also fighting for custody of your kids. The problem then occurs that you have all these pictures of your new life as a free person where you're drinking with your friends, and you're out on school nights. You're living this party lifestyle. Maybe you're posting about the party lifestyle. Maybe you found some new habits, rediscovered some passions from college that you've long forsaken.
Irena Chernova: All these things are also admissible. They may have some criminal elements in other cases, too. It's an issue if you're not home with your kids and you're out partying with your friends; A, who's watching your kids, and; B, are you the type of parent who's going to be able to maintain primary custody.
Todd Orston: Let me also say this: Sometimes perception may not be reality. What I mean by that is if all of a sudden I see picture after picture after picture of a person at a bar with a beer in their hand, each one of those nights, you may have only consumed one alcoholic beverage, very responsible, but that doesn't matter.
Todd Orston: All that the court saw was picture after picture after picture of an alcoholic beverage in your hand. As quickly as you're saying, "But that was my only drink that night," the other party is like, "She's out partying or he's out partying constantly getting drunk, getting this, getting that, acting crazy." At that point, because you felt the need to put these pictures out there for public consumption, you're now defending yourself, and it's sometimes a losing battle because the court may not make the same assumption.
Irena Chernova: Another point when it comes to the mental stability, I think the rules is, I like this quote, it says, "Status, not a diary," about your Facebook statuses. Some people really do use Facebook to have this long-running public journal of their lives. They will post these heart wrenching either long emotional statuses about how bad it's going and how depressed they are and how sad they are, or pictures or articles that, not necessarily disturbing, but over and over again, dark. That goes towards what you were saying, Todd, with perception is reality. If the other person is alleging that there's some mental instability or some kind of psychological issue, it can bring that in as support. It may or may not be true, but once a judge sees that, you can't really un-see it.
Leh Meriwether: You can't. If your child happens to be friended with you, your child can't un-see it either.
Todd Orston: That's a big issue. We've had cases like that where, unfortunately, we find out ... we were incensed. I had one case where we were clearly bothered by what was being said by the mother. We were incredibly bothered when we found out that the young teenage child was friended with, or was a friend of the mother's on Facebook, and was seeing all of these posts. They were bad. It was just negative, negative, negative about the father. You have to be careful.
Todd Orston: First of all, this kind of messaging, it's not the right forum. If you're going to, you'd better make sure that your child or children are insulated, and also, like I said, and like we're all saying, be ready for it to be downloaded, printed, and brought into court.
Leh Meriwether: Going back to what you said earlier, Irena, when you said you found out that your old Twitter account was still out there.
Irena Chernova: It's private now. No one Google me, please.
Leh Meriwether: Darn it. A child, as they get older, can go back and see those old posts. If you're posting something bad, they can go back and read it.
Irena Chernova: Absolutely. Divorce is hard on kids to begin with. If they're friends of their parents on Facebook, you have this long, almost an open book, it's an open Facebook, an open book of the history of your divorce and how much Mommy and Daddy hated each other. You're just continuing that pain for that child. You don't want to do that. You want to just hit pause. Think before you hit post.
Leh Meriwether: That's good. Think before you hit post.
Todd Orston: We should put that on the radio.
Leh Meriwether: Another thing to think about is let's say you're not friends with your son or daughter, but maybe somehow your posts gets to one of their friends, whether it be through their friend is friends with your best friend who just saw your post, and they see your post.
Todd Orston: I need a diagram to figure out the friends, but your point is well taken.
Leh Meriwether: Next thing you know, he finds out about it anyways.
Todd Orston: Again, if you're putting it out there, assume it's going to get into the wrong hands. It's a web. It's this-
Irena Chernova: The World Wide Web.
Leh Meriwether: The World Wide Web, absolutely.
Todd Orston: It's an integrated web. You may think that you are in control of who it's going to, but you are not.
Leh Meriwether: Up next, you're going to hear how we use social media to catch people lying about how much money they make. Welcome back, everyone. I'm Leh Meriwether and with me is Todd Orston and Irena Chernova.
Irena Chernova: Good job.
Todd Orston: And the crowd goes wild.
Leh Meriwether: Todd and I are partners at the law firm of Meriwether & Tharp. You're listening to Meriwether & Tharp Radio on the new Talk 1067. If you want to learn more about us or Irena, you can always call or visit us online at atlantadivorceteam.com.
Leh Meriwether: Now, in studio, we have Irena. She is diving into ... she's sharing her secrets of using social media to get all kinds of good evidence in domestic cases. The information we're sharing doesn't just apply to family law. It applies to every area of the law. If you're in litigation, you really want ... Facebook is not your friend.
Leh Meriwether: The last segment we talked about child custody and ways that, when you're in a child custody case, whether it's a divorce or a legitimation action, whatever it is, Facebook and social media, Instagram, Twitter, Snapchat, Pinterest, they can all come back to haunt you. We talked about how they can haunt people in child custody cases. Now we're going to talk about finances. How can they impact someone in finances?
Todd Orston: And they most assuredly can. Whether we're talking about support, and by support I mean child support or spousal support, otherwise known as alimony, or whether we're talking about division of property, evidence relating to your income, evidence relating to your job status, evidence relating to your spending habits, all that kind of evidence, which is the kind of stuff that is communicated quite often, more often than think on places like Facebook, that can and is routinely used against people in court.
Leh Meriwether: Irena, share some examples of how you use Facebook or social media to help gather information that you could use for your client in a case.
Irena Chernova: I really love using Facebook in child support contempt cases just because I feel like I don't know why there's such a disconnect between people ... Obviously, the defense to child support concept, just so everyone knows, is the inability to pay, is to come to court and say, "I cannot pay this. I have no money." Either, "I'm completely broke or I make next to nothing." Then you click on their Facebook, and they've just bought a new car and they've gone to the Bahamas, which unless they've-
Todd Orston: They're running great deals right now, just so you know.
Irena Chernova: Zero dollars. Unless they're working on the ship on the cruise, obviously, they're not telling the truth. That's admissible in court. You can put these people up on the stand and say, "This is your Facebook post. This is a picture of you on a cruise ship. Is this dated?" Facebook will date the pictures. "It's dated two weeks ago. What happened? But you didn't make your child support payment, and you haven't made it in months." That's evidence. That's enough to find willful contempt if that person is saying they don't have the money to pay.
Todd Orston: And have them thrown in jail.
Irena Chernova: And have them thrown in jail, absolutely.
Leh Meriwether: Another thing I've noticed is people will say ... alimony is another example. They can say, "I just can't pay alimony. We barely make ends meet." Then we look on Twitter: "Heading back to the golf course for the fifth time this week." You go find from the golf course how much they charge. You gather that information. You come into court and say, "Here's his Twitter account. He's going to the golf course all the time."
Irena Chernova: Or they're checking into Las Vegas at the casino, gambling away their entire paycheck and saying that they can't afford to give any alimony to their spouse.
Todd Orston: I had a case where we were dealing with child support. The issue, obviously, the other party was claiming, "I make no money. I am unemployed." Turns out that he was managing bands. He was paid under the table. He claimed, "That dried up. I don't have any work anymore," yet we went on to social media, and week on, week off for months, it was basically at this location with this band and they're doing great. The next night it's like, "They're doing fantastic. I'm at this concert." It was just page after page that we had to be able to show no judge is going to believe that you are unemployed.
Todd Orston: A, you're not paying to get into every one of these concerts. I work. I can't afford to go to concerts that often. This guy was at concerts three times a week. Again, he was talking about how, my client and my this and my that. Obviously, that evidence, we had to use it. We ended up being able to figure things out without the need for a hearing. I do believe that the social media evidence was a big part of that. We were able to say, "Look, you don't want to go in front of a judge. This is the evidence that we have. You're not unemployed."
Leh Meriwether: One of the social media websites I left out is LinkedIn. We've seen people say, "I make money but this is what I'm doing. I only make about $30,000 a year." You look on their LinkedIn profile. It says, "I'm the CEO of this Fortune 500 company." You would think if you'd gotten to that point, that ... I don't think I've ever seen a CEO do that, but I have seen some other people that were in a high-level sales position or manager position in the company claim they were in a lower level position making a lot less money. Their LinkedIn profile clearly showed something the opposite.
Leh Meriwether: The funny thing was, they get in there and then they start saying, "I was just fudging it." Then the court's going, "Hang on a minute. That means you lied on your LinkedIn profile? If you're lying there, why should I believe you in this courtroom?"
Todd Orston: You know what the problem is? The analogy I would use is I remember growing up and being told or hearing about the whole issue of lies, that it's hard to keep track of all your lies. You're going to end up getting caught. When you're just talking and you're lying, that's one thing. Here, I don't think people remember everything they've put out there. There are so many opportunities to post information about yourself, to post about your income, to post about your job experience, to post about your social events. It's incredibly hard. If you and I are just talking, if the three of us are just talking, I can try and keep track of the lies I'm telling you.
Irena Chernova: How many is it now?
Todd Orston: It's countless.
Leh Meriwether: I've got five.
Todd Orston: You've got five? I can try and keep track. It's really hard when you're talking about months of submissions, years of submissions into these applications. You can't keep track of those types of things. You're not going to remember. Not only you're not going to remember where you posted, you're not going to remember what you posted.
Leh Meriwether: Or when.
Todd Orston: Or when. When you walk into court, and they're throwing those things at you, more than likely you've already contradicted yourself, and they've got you.
Irena Chernova: To piggyback on that, I think there's all this pressure since there is so much social media, and we're all putting our lives out there, to kind of, especially in this context of financial things, to make your life look better than it is, to be boastful. In court, you're going to say I can't pay child support and alimony, but on Facebook, you're going to talk about your new truck and your new shoes and how you got an Armani suit and all of these things. It may not be true. It may not even be your Armani suit. You're just trying to make yourself look good, but that's going to hurt you in court. Then you're caught in a lie either way.
Todd Orston: I will say very quickly, sometimes it's cathartic. I also understand that. You're going through a bad time. You're struggling with a divorce or some other kind of litigation. You want to be boastful. You want to talk about how your life is not all negative, that there are positives. Now is not the time. If you are going through a case, if you're in the midst of litigation, anything you say, like those Miranda rights, and we've talked about this, anything you say can and will be used against you in a court of law.
Todd Orston: While it may be cathartic, you may need that as part of your healing process, unfortunately, now is not the time. Wait until the case is over and then, if you want to buy Armani suits and you want to do other things, fantastic. You want to party, do whatever you think is reasonable and responsible, but not while the case is pending.
Leh Meriwether: That could result in a modification, actually.
Todd Orston: That's why I'm saying reasonable and responsible. I did throw that caveat in there.
Leh Meriwether: We have seen cases where I know that one of the lawyers used a Facebook post. The funny thing was, actually just prior to the hearing, he was posting about his trip on the lake with his new 35 foot, I don't remember how long it was, Carver boat. Carvers are, my understanding, they're pretty expensive boats. He was definitely claiming this was his boat. He was showing all the people on the boat. He supplied all the drinks for the party and everything. It looked like he spent several thousand dollars to throw this party. He walks into court on Monday, maybe it was Tuesday claiming, "I barely make anything." Needless to say, on cross examination, our lawyer produced one photo and one post after another, after another. The judge imputed something like $80,000 to him that day.
Irena Chernova: You have to live up to this lifestyle that you portray. Facebook is an extension of yourself. It's your online presence. That's going to come to court with you.
Leh Meriwether: Be very, very careful.
Todd Orston: I shouldn't post about my jet and my ... I can't even make a joke. Delta is too expensive for me. I can't support my own ...
Irena Chernova: Jet Blue. Jet Blue is the way to go.
Todd Orston: Jet Blue. Really? Greyhound.
Leh Meriwether: Amtrak. I had this great train ride the other day. You know what? Gosh, there is so much more that we can talk about so many fun ... I'll just leave it with this: Lawyers look for chances. One of the things we love to do is cross examine because our client loves it. Think about this: Is this something that I could be torn apart with on the stand? Trust me, we as lawyers, we're looking for that opportunity to look right in the courtroom and make the other person look sad. Up next, we're going to talk about things that you should be thinking of, the best practices when it comes to social media in a divorce. Welcome back. I'm Leh Meriwether and with me is Todd Orston and Irena Chernova.
Irena Chernova: Second time in a row, good job.
Leh Meriwether: All right. Todd and I are partners at the law firm of Meriwether & Tharp. You're listening to Meriwether & Tharp Radio on the new Talk 1067. If you want to learn more about us or Irena, you can always call or visit us online at atlantadivorceteam.com. Today we're talking all about social media, especially in the context of how it can hurt you in a domestic matter, in any litigation. We've been talking about how it can impact a child custody case, how it can impact a case involving money.
Leh Meriwether: I do want to just say one quick thing about where I left off talking about how we love the cross examination. At Meriwether & Tharp, that's not what we're shooting for. We're not shooting to tear the person apart in court. We do enjoy that. I have to admit that. I'm not going to lie.
Todd Orston: We're litigators. End of story.
Leh Meriwether: We try to resolve cases. A lot of times we gather this information so that we can actually help settle it. If someone's taking an unreasonable position, we'll often use this information and go to their lawyer. Their lawyer usually will know the impact it will have in front of the judge. We'll use it to help facilitate settlement of the case, which helps everybody.
Leh Meriwether: That being said, I know Irena has got some amazing stuff that you pulled up about all the data that is in many of these social media accounts like Facebook. I'm going to just hand the floor over to you, and just share with us all the things that are tracked in social media.
Irena Chernova: I was shocked. I think we're all shocked. There is this whole situation right now with Facebook and Mark Zuckerberg talking about all these things. We put all of this information about ourselves out in the public sphere. This is all available to opposing counsel in your case if they use this download your information tool. Here's just some of the things:
Irena Chernova: Let's see, any ads that you've clicked; any past addresses that you've lived in; any alternate names; all of your chat history, messages, communications, all of that stuff back for years; credit cards that you've used; all of your past check-ins. If you checked into Harrah's Casino or the Magic City down in Atlanta, Facebook saved that. Even if you put it on private, Facebook has that stored. Any connections; any people who have liked your page or liked things on your post; former girlfriends, current girlfriends, boyfriends; any deleted friends. If you were trying to maybe clean up your friends list from an unsuspecting spouse, that's not discoverable.
Leh Meriwether: Your old high school girlfriend?
Irena Chernova: Yup. All facial recognition data. Now that we have phones that enable facial recognition, which is crazy to me; any followers, people that you're following that not necessarily friends with. Maybe you can hit a follow button on someone and not be friends with them. That's also discoverable. Any groups that you were in; any friends, apps or pages you have hidden from your news feed, which means they are private to you, which means you probably hid them for a reason. That data is stored, and that data can come out. Likes on others' posts. Linked accounts. I guess if you ever took a quiz to figure out which banana you are in the fridge, and you gave them your Facebook information, that's also in there, not that that's really going to impact your case, but you never know what quizzes some people are taking and what they're liking that's linked through Facebook.
Irena Chernova: For example, if you check into Match.com, and you use your Facebook information, obviously, it's because Match.com won't post on you. I don't know if Match.com links to Facebook. It's just an example. That will show up in your data that you accessed, possibly, Match.com while you were married, even though you don't think you did because it's not public. It's a private site. If you didn't provide that information originally in discovery, you now lose all credibility because your Facebook logon shows that you have these other accounts that are maybe dating apps and other things that typically are requested that you didn't provide.
Irena Chernova: This list is three pages long. It's crazy how many things are in there. Lawyers are getting creative. People are asking for stuff like status updates, locations, check ins. This gives you all of it in one question.
Todd Orston: Really the take-away here is, because you're right, it is three pages. My guess is if we had Mr. Zuckerberg here, we could probably turn this into 20 pages. The bottom line is do not be fooled. It is not as simple as name, address, gender, maybe a birthdate. We're not talking about basic information. We're talking about facial recognition data. We're talking about stuff you're not even thinking about, things you think are hidden, private, whatever.
Leh Meriwether: One thing I just noticed ... I'm sorry to interrupt you.
Todd Orston: You're fine.
Leh Meriwether: IP addresses. I guess where you log in. If you check your Facebook account at your girlfriend's that you're claiming doesn't exist, it tracks where you logged in.
Todd Orston: Really, what it comes down to, it comes down to the sophistication, the level of sophistication of the attorney on the other side. As we all know, there are some attorneys that barely want to use a computer for word processing. More and more attorneys, especially with more and more younger attorneys who are more in-tune with social media and just computer generated evidence, meaning obtaining it regarding social media, you have to be very careful. All it takes is just the ability to think a little bit beyond just what's on the surface, and we can start gathering. We do often at our firm, we start gathering information you never thought even existed out for public consumption.
Leh Meriwether: Sometimes we even do it for our own clients. Going to your point, you don't remember what you post. Sometimes we go and we check our own clients' social media.
Irena Chernova: I always do.
Leh Meriwether: We'll sit down with our client and say, "We found this post. What's going on?" "How dare you do that?" I'm like, "I'd rather deal with it now and not opposing counsel pull it on you when you're not ready in court. Let's talk about it."
Todd Orston: We oftentimes do it with their knowledge, that we'll sit down with them because we do have access to certain skills and abilities and training that we can try to dig a little bit deeper than, let's say, just the normal non-practitioner can do. I know I've sat down with clients. I'll be like, "Is there anything out there we need to be worried about?" "I don't know." "How about we look? How about we try and find something out or just look to see if there's anything there?" A lot of times it's nothing. Sometimes, it's not nothing.
Leh Meriwether: Do you have a quick checklist that people can think of to use, keep in mind when they're in the middle of litigation?
Irena Chernova: Sure. Absolutely. The first thing I want to re-emphasize is you should not delete your Facebook or your social media if you're in active litigation. That is spoliation of evidence. It's destroying that evidence that the judge can then presume is going to be used against you.
Irena Chernova: There are things you can do. Obviously, you should use discretion when you're posting. It's really best not to post at all. I know that's hard in our social media world. We want to share something. Just be careful. Don't vague book either. Vague booking is when you're posting something, but you're not specifically saying it, but everyone can tell that you're saying something about your ex. You're just being passive-aggressive.
Todd Orston: You don't mention a name but, that dog. That jerk. That whatever. Not naming names, but you ...
Irena Chernova: Or you post a picture, a meme, of crushing someone with your thumb. Obviously, everyone knows you mean your husband. That's obvious. Obviously, don't post pictures of yourself at social gatherings drinking, going out, especially if you're going through a custody battle. Obviously, pictures of you and your friends at a restaurant, that's okay, but just be careful what you post there. Avoid checking into locations. I would turn your location settings off. You don't know. Facebook has a location setting that runs constantly that's the IP addresses. Go in there and check and see if they're on. If they're on, I would turn them off. That's gathering information.
Irena Chernova: Your privacy settings, obviously, you should keep your account on private. You should protect your tweets, as we call it. Make those private too. Just keep in mind that you and your ex may have mutual friends. You can actually go through your privacy settings. You can limit what posts are visible to certain people. If you have mutual friends and you must post, I would limit. Maybe your grandma can see it and your best friend.
Leh Meriwether: Make sure you look through your friend list, I would think. Make sure your children, either you block them or take them off. I don't know. I wouldn't want them to see the post.
Irena Chernova: A hundred percent. I just became friends with my mom on Facebook. It took some begging from her. That's important, too. I would unfriend or block your children. Definitely be careful with your relationship status. Be careful disclosing it. Obviously, adjust your privacy settings. Don't answer any questions about your relationship online. Don't comment, "Going out with my hot new boyfriend," on a friend's post because that's going to get back to someone else.
Irena Chernova: Just err on the side of caution. If you don't want a judge to look at it or read it, I just wouldn't post it.
Leh Meriwether: Another thing, I think you had mentioned, I don't know if you mentioned it earlier but when we were off the air, is if you go out with someone, don't have them take a picture of you and then say, have them post something thinking that they won't see it. If they potentially tag you, it shows up in your feed.
Irena Chernova: Even if you don't, you might have mutual friends of that person. All of a sudden, your life is public online. There's a great quote that I really like that says, "Dance like nobody's watching. Email like it may be one day read aloud in a deposition." I think the same thing applies to posts. Don't post your photos or your statuses or anything unless you want it read out loud for the world to see. That's what you're doing.
Leh Meriwether: Gosh, we can keep going for a whole other hour, but we don't have another hour. Unfortunately, that about wraps up this show. Irena, thanks so much for coming on the show.
Irena Chernova: Thank you so much for having me.
Leh Meriwether: This was a lot of fun.
Todd Orston: Absolutely.
Leh Meriwether: I learned a lot, too.
Todd Orston: This topic is so important. You're right. We're going to end up having future shows that dig even deeper. So many people get into so much trouble because of the pitfalls associated with the use of these programs.
Leh Meriwether: If you want to read more about us or find out more about this topic, you can always check us out online at atlantadivorceteam.com. If there's a topic you would like for us to explore, please email us at [email protected] Thanks so much for listening.
Todd Orston: This audio program does not establish an attorney-client relationship with Meriwether & Tharp.