- Are custody litigants/divorce litigants barred, in states with strong spoliation statutes, from changing any publically accessible aspect of their lives?
- Are they only barred from doing so once opposing counsel has sent some sort of "notice to preserve"?
- If this is the law, is it anything like a good policy?
- If litigants, particularly custody litigants, realize that they're presenting to the world, and to their children, some image of themselves which, in 20-20 retrospect, is less than stellar, do we want to not only discourage them from fixing it, but punish them, legally, for doing so?
- By analogy, if I learn that my client, before I got involved in the case, routinely went to publically visible custodial exchanges with his ex-wife, wearing a t-shirt which said "Slap the Bitch Up!", am I not allowed to tell him once he's hired me, to stop doing so ?
"The underlying question, though, was "Is 'cleaning up' your FB page spoliation?" and it's NOT a ludicrous reading under some spoliation and evidence law, though I practice in CA, and we do stuff our own way here."
"Arguably, one's Facebook page, as composed at a particular time, and with particular contents, is a 'writing'. FRE 1001(1) 'Writings' and 'recordings' consist of letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.
"There is certainly controversy, outside of the family law context, as to what use/mis-use/alteration/deletion of electronic "writings" should or shouldn't be considered a spoliation. It's not a completely implausible stretch to argue that materially altering the state of a Facebook page (by taking down, e.g., one's drunken naked pictures) is changing or destroying a relevant "writing," and thus, 'spoilation'. "
Interestingly, Tennessee has a statute by which each party is, immediately upon filing of acomplaint for divorce or separate maintenance, prohibited from deleting content on a hard drive or other storage device. The TN statute, TCA § 36-4-106, says:
"(d) Upon the filing of a petition for divorce or legal separation and upon personal service of the complaint and summons on the respondent or upon waiver and acceptance of service by the respondent, the following temporary injunctions shall be in effect against both parties until the final decree of divorce or order of legal separation is entered, the petition is dismissed, the parties reach agreement or until the court modifies or dissolves the injunction, written notice of which shall be served with the complaint:
* * *
(4) An injunction restraining and enjoining both parties from hiding, destroying or spoiling, in whole or in part, any evidence electronically stored or on computer hard drives or other memory storage devices."
Gould-Salzman cited two articles available on the Internet:
Nathan Drew Larsen "Note: Evaluating the Proposed Changes to Federal Rule of Civil Procedure 37: Spoliation, Routine Operation and the Rules Enabling Act" Northwestern Journal of Technology and Intellectual Property Volume 4, Number 2 (Spring 2006). (Accessed October 9, 2010)
Jonathan C. Scott and Lawrence R. Lassiter Scott & Scott, LLP, Avoiding Spoliation Sanctions Under the New Federal Rules of Civil Procedure, http://www.scottandscottllp.com/resources/article_spoliation_article.asp (Accessed October 9, 2010)
What is your policy regarding your clients' Facebook and MySpace pages? Do you tell your clients to make them private? Take them down? Delete content? Leave your comments below.