The Subpoena Power

By | Child Support, Community Property, Custody and Conservatorship, Divorce, Just and Right, Marital Property Division, Separate Property, Trial Issues

There are two types of subpoenas that can command two types of actions. Trial subpoenas command appearance at a trial or hearing and discovery subpoenas command appearance to give testimony for the purpose of discovery of evidence. Either way, the subpoena can also ask for production of documents or tangible items for trial, a hearing or discovery.

The subpoena power can reach beyond the parties in a lawsuit. It can also compel non-parties or entities to comply. Although there are some limits, generally speaking, someone can be compelled to testify or produce documents in a case that they are not directly involved in. For example, Denise Richards could have been subpoenaed in Charlie Sheen’s criminal assault case for his alleged attack on Brooke Mueller. In his suit against Kim Kardashian, Chris Humphries (her 72 day husband) subpoenaed Kanye West (her boyfriend) to appear and give testimony at a deposition, purportedly to show she didn’t intend to marry Chris for legitimate reasons.

Oftentimes, the only way to obtain admissible evidence in a case and prepare for trial is to seek information from third parties using a subpoena. Bank records, computer files, corporate books and records, report cards, medical records, phone records and so forth are good examples. Note: Facebook and other social media sites are protected by federal law from the subpoena power.

Failing to comply with a subpoena could result in contempt charges. The statute allows for a court to assess fines or require the non-appearing party to be confined. Texas Rule of Civil Procedure 176.8.

Court Refuses to Admit Facebook Pictures

By | Custody and Conservatorship, Divorce, Trial Issues

A Webb County District Court refused to admit a mother’s provocative Facebook pictures in a termination case. The County Attorney attempted to introduce Facebook pictures and posts by asking the mother if she in fact had posted provocative pictures of herself. When the mother said no, the attorney sought to use the pictures to show the jury that the mother was a liar and to impeach her character. I’m sure the shock factor of a mother of six posing for nasty pictures for the public to see was only a small bonus.

The mother, whose Facebook pictures and comments were too inappropriate for repeating here, argued that they should be excluded for two reasons. One, because she recanted her testimony that she hadn’t posted provocative pictures, and two, because they were more prejudicial that probative.

The Appellate Court agreed with her first point because the record showed the jury already knew she was liar and the introduction of more evidence that she lied about whether or not she posts provocative pictures of Facebook would be redundant. The Court then cited the proposition that exclusion of evidence that is cumulative is harmless.

I’m not saying there is much of a lesson in this case except that there are situations where Facebook pictures are inadmissible. The mother in this case was accused of many disturbing acts including trying to set her house on fire with her children in it. I don’t think the Facebook pictures were the center of the County’s case.

Using Social Media as Evidence in a Divorce – What you can and can’t do.

By | Custody and Conservatorship, Divorce, Just and Right, Marital Property Division, Trial Issues

Spouse is cheating, doing drugs, being a bad parent and Facebook can prove it right? All you need is for your lawyer to show the judge. Right?

There are 845 million monthly active users of Facebook and each profile has 40 potential entries of personal information. It goes without saying that a party’s activity on social media sites could be a lightning rod in a family law matter. Case in point: Anthony Weiner’s pictures on Twitter could have affected a would-be divorce brought by his pregnant wife.

Unlike financial records, where information reflecting detailed transaction activity over decades can be discovered via a subpoena, social media and networking sites are protected by federal law from forced disclosure.

Federal law prohibits electronic communication services from disclosing “contents of a communication while in electronic storage by that service” and prohibits remote computing services from disclosing “the contents of any communication which is carried or maintained on that service.” 18 USC § 2702.

Courts have interpreted the meaning of “electronic communication services” and “remote computing services” to include Facebook, Myspace, Twitter and Linkedln as well as email providers such as Gmail, Yahoo and Hotmail. Therefore, you can subpoena the records until you are blue in the face, but they are not required to produce anything more than basic information. Even if it were possible, it would be the most expensive route because many of these companies are out of state and a subpoena wouldn’t be considered until the lawsuit is domesticated.

Fear not, there may be another way.

A court in Connecticut recently and quite boldly ordered divorcing parties to exchange Facebook and dating site login and passwords. Although Texas doesn’t have any reported cases involving this kind of exchange, it is within the realm of possibility considering applicable discovery rules.

A party in a Texas lawsuit is entitled to discovery of non-privileged information that is relevant to the subject matter of the case. Even if the information would not be admissible at trial, it may be discovered if it appears reasonably calculated to lead to the discovery of admissible evidence. Tex. R. Civ. P. § 192.3(a). For more information on discovery, refer to my blog: Finding Hidden Assets in a Divorce.

In the divorce or custody context, this means information relating to fault in the marriage, parenting, child support and everything in between could lead to the discovery of admissible evidence. Content on Myspace or Facebook depicting you behaving like a single person is likely to lead to admissible evidence that you committed adultery. Match.com or eHarmony is a little more obvious. A statement regarding drug use is likely to lead to admissible evidence that you do not have a stable home environment for your children. Therefore, a strong argument can be made that content on social media sites are relevant and in fact valuable in proving your case.

“If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place.” Eric Schmidt, CEO of Google 2001-2011.

The best way to discover social media activity is to request it through discovery from the party who controls the account. As you can imagine, your spouse may object and do whatever is necessary to prevent the disclosure of the so-called “private” posts and communications. The privacy argument has been heavily debated but ultimately, the argument is weak in light of how slight the expectation of privacy is on these sites.

There are no bright line rules or tests in Texas that will guarantee you can force disclosure or prevent it. The argument to force disclosure is strengthened by the connection it has to subject matter in the case. It is weakened if there are other means to get the information or if it is out of scope, unduly burdensome or not likely to lead to the discovery of admissible evidence.

Facebook has made it somewhat easier to discover this information by allowing users to download a copy of all their facebook data online. Myspace will allow the production of data with the consent of the account holder. As it gets easier to produce the information, courts may be more inclined to order its production.

Unfortunately, it doesn’t appear that there is a solution to discovering deleted posts so it’s worth hitting the print button on posts you foresee being useful down the road. In situations where crucial information may have been deleted by the user, it may be possible to have a forensic exam of the party’s hard drive.

As always, the analysis will turn on the specific facts of each case and court. Check back for more information as case law in Texas develops.