Spoliation of Social Media Evidence: Think Before You Delete

iStock_000020318351XSmall02We have all heard the warning, “Be careful of what you post on the Internet!” However, all of us find ourselves in a situation where we wish we had been more cautious and could take back what we posted on social media. Typically in these situations we go back and delete our posts. However, what if the mere act of deleting content from your social media account could be used as evidence against you in court?

Under Illinois Supreme Court Rule 219(c) and the common law theory of negligence, a party can be sanctioned for deleting content from their social media account. In family law matters, clients should be aware of this potential risk regarding the management of their respective social media accounts to avoid potential litigation over spoliation of evidence.

Consider this example: Father has parenting time with the child over Christmas Break, and decides to take the child to an indoor water park, just over the border, to Wisconsin Dells. The father then posts pictures on Facebook showing how much fun the child is having. Mother gets wind of this and remembers a provision in their Joint Parenting Agreement requiring both parents to consent before one parent can take the child out of state. Mother files a Petition for Rule to Show Cause. The immediate reaction the father will have is to delete his Facebook posts. However, since he is now aware that the evidence can be used at a hearing against him, he can be sanctioned for deleting the evidence under the doctrine of spoliation for violating his duty to preserve evidence.

Under the Illinois Supreme Court Rule 219(c), sanctions shall be granted if the party deleting evidence “knew, or should have known, the evidentiary value” of the evidence, and intended to destroy it in bad faith. Thus, in the example above, the mother would have no difficulty seeking sanctions against the father because she can show that the father intentionally deleted the evidence in bad faith after learning of her Petition for Rule to Show Cause. Sanctions against the father can be imposed in the form of monetary penalties, evidentiary presumptions, barring of evidence, dismissal of a lawsuit and a default judgment against him.

Under the common law theory of negligence, the moving party must show: 1) there was a duty to preserve evidence, 2) the party breached that duty, 3) the breach caused the moving party to be unable to prove her underlying suit, and 4) she suffered damages as a result. Thus, in the example above, the mother can prevail on a negligent spoliation of evidence claim by showing the father had a duty to preserve the evidence, he breached his duty by deleting the evidence, because of his breach she was unable her prove her Petition for Rule to Show Cause, and therefore suffered damages.

So what does all of this mean? If you believe something you posted on your social media site can be used against you in your domestic relations proceeding, do not delete it before contacting your attorney. Consider this your friendly reminder: Be careful of what you post on the Internet, but also, be careful of what you delete!

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Ishita Saran

About Ishita Saran

Ishita Saran is a third year law student at The John Marshall Law School. She is currently ranked 7th in her class and serves as an Associate Justice on the Moot Court Honors Council. Ms. Saran started as a Law Clerk at Schiller DuCanto & Fleck, LLP in 2015, prior to which she was a judicial extern for the Honorable Mark J. Lopez in the Domestic Relations Division of the Circuit Court of Cook County. Her experiences as a law clerk and judicial extern have provided her with an insight and ability to effectively advocate for clients.

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