Social networking passwords now subject to discovery

Mary Zambreno Iowa Commercial Litigation Iowa Family Law Dickinson Law Firm Des Moines Iowa

Posted on 12/13/2011 at 10:16 AM by Mary Zambreno

Account passwords are meant to be confidential.  We are told repeatedly never to share our passwords with anyone else and to change our passwords often, so as to prevent hackers from invading our privacy. But what if the hacker is a soon-to-be-former spouse?  And what if a judge is allowing the hack to occur? One Connecticut judge did just that when he ordered that the parties to a dissolution of marriage reveal their social networking passwords to each other.  The husband in that case saw some potentially incriminating evidence against the wife on a shared computer that convinced him there may be even more evidence on her social networking accounts, such as Facebook.  The husband claimed there was evidence about the wife’s opinion on her caretaking and that this would be useful to him in a custody battle.  Later, at a deposition, the wife was asked for her passwords, and although she initially refused, her attorney counseled her to turn them over.  Perhaps regretting her decision, the wife then texted a friend to change the passwords and delete messages.  The husband sought an injunction to prevent her from deleting material and for the spouses to exchange their passwords. Apparently, this trend is catching on.  Judges in other civil litigation cases have issued similar orders or have gone so far as to actually sign onto someone’s Facebook account to look for evidence.  Requesting paper copies of posts, messages, and photos from a spouse’s Facebook, MySpace, or Twitter account is generally fair game during the discovery process.  Arguably, such material is reasonably calculated to lead to admissible evidence about a spouse’s infidelity, for example.  Incriminating photographs posted on Facebook may lead to evidence justifying an award of custody against a parent.  Seemingly innocuous posts on Facebook complaining about the kids may be interpreted as an admission about one’s inabilities as the primary physical caregiver. But the actual password itself? What’s next? Should spouses be required to turn over passwords to internet banking or online credit card accounts under the guise that there may be evidence in those bank statements? If you are a party to a divorce, take heed. Perhaps its time to delete that Facebook profile for the time being.

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