The practice of law is constantly evolving to keep up with changes in technology. The past decade has witnessed the onset of E-Filing, reliance upon e-mail and text messages as primary modes of communication, and the influential realm of social media. As family law practitioners, we must be cognizant of the benefits while exercising caution in navigating the limitations associated with these platforms.

Long Arm Jurisdiction and Service of Process

Social media has become a useful tool in locating old friends and keeping in touch with family members residing around the world. It can also be helpful in finding an otherwise absent party in a matrimonial matter. While our Court Rules do not explicitly permit serving a complaint on an unavailable litigant via social media, our case law has allowed this method of substituted service.

In the published trial court decision of K.A. v. J.L., 450 N.J. Super. 247 (Ch. Div. 2017), an out-of-state defendant used social media to engage in inappropriate contact with New Jersey residents. As a preliminary matter, the court found New Jersey had personal jurisdiction over the defendant because he “knowingly reached out to various members of plaintiffs' family, who are New Jersey residents.” As such, the defendant could have anticipated the harm would occur in New Jersey. This exercise of long arm jurisdiction can be extended to matrimonial matters. It is particularly relevant in domestic violence actions when the allegations arise via social media or other electronic communications.

K.A. also permitted service of the complaint via social media when neither personal service nor mail per Rule 4-4(b)(1) were viable options. In K.A., the alleged conduct only occurred via Facebook and Instagram. The defendant's recent activity on Facebook verified the account was in use. Moreover, the receipt of the document in this context could be verified through a feature within the Facebook website. Thus, in a matter of first impression within the New Jersey courts, Judge Hansbury held that service of the complaint via Facebook satisfied due process and was permissible per Rule 4:4-4(b)(3).

On a related note, for the past several decades, the primary method of substituted service has been through newspaper publication. Given the explosive rise of social media accounts and heavy reliance upon online sources accompanied by the sharp decline in print publications, it would not be surprising to witness a considerable shift in favor of these digital forums in the near future.

Discovery

On Feb. 8, 2018, Governor Murphy issued Executive Order #9, which guaranteed free and open internet to all individuals. This order recognized our reliance upon the internet to connect with friends and family members, conduct research and engage with our communities. This executive order memorialized the obvious—nearly all individuals, regardless of their age, sex and social class, are active and widespread users of the internet in a variety of ways. However, a common element with nearly all online activity is the potential to create an everlasting digital footprint and long after after a comment or post is removed from social media, it may continue to exist in perpetuity through the cached pages of a database, websites designed to preserve deleted account information, or the simplicity of a screen shot.

Within the matrimonial context, information uploaded by your client, the other party, or even by third parties “tagging” either party, may be relied upon in a dispute surrounding custody, parenting time, alimony, cohabitation, lifestyle, equitable distribution, domestic violence, grandparent visitation, etc. Thus, in light of pending or anticipated litigation, it is not uncommon for a litigant to modify their social media “name,” change their privacy settings, “unfriend” the other litigant, or delete their account altogether. As a litigator, it may be tempting to investigate the other party's restricted social media accounts to gather potential evidence. However, in doing so, we must exercise an abundance of caution and refrain from exceeding the permissible bounds of ethical conduct.

In Robertelli v. N.J. Office of Atty. Ethics, 224 N.J. 470 (2016), an attorney directed his paralegal to submit a Facebook “friend” request to an adverse party, whose profile access was restricted to “friends” only. The request was accepted, and the attorney was able to monitor the non-public Facebook profile. As a result of this conduct, the Director of the Office of Attorney Ethics conducted an investigation and filed a complaint against the attorney, citing a number of ethics violations. In its review, the Supreme Court articulated the issue to be “whether an attorney can direct someone to 'friend' an adverse, represented party on Facebook and gather information about the person that is not otherwise available to the public.” Without ruling on the merits of these allegations, the Supreme Court held the director was authorized to bring charges on this novel issue. Despite the passage of time since this decision, there have not been any Ethics Advisory Opinions, published cases or amendments to the Rules of Professional Conduct concerning the boundaries of relying on an adverse party's private online activity. Nevertheless, attorneys are urged to avoid questionable investigative tactics involving private or restricted social media accounts.

A safer alternative for garnering such information is to request, via discovery, any and all information pertaining to a litigant's social media accounts, including but not limited to all postings, friend lists, check-ins, private messages and photographs. In addition, a formal demand to preserve all social media accounts should be issued from the outset of any litigation. If information has been altered or deleted, your client may have recourse for “spoliation of evidence.” As held in Hirsch v. Gen. Motors Corp., 266 N.J. Super. 222, 250 (Law Div. 1993), there is a duty to preserve evidence if there is: “(1) pending or probable litigation involving the defendants; (2) knowledge by the plaintiff of the existence or likelihood of litigation; (3) foreseeability of harm to the defendants, or in other words, discarding the evidence would be prejudicial to defendants; and (4) evidence relevant to the litigation.” Similarly, if a litigant fails to respond or comply with providing information about his or her social media account, relief may be sought under Rule 4:23-5, Failure to Make Discovery.

Unfortunately, there is little recourse to obtain this information in the face of a recalcitrant litigant. Pursuant to the federally-mandated Stored Communications Act, 18 U.S.C. §2701 et seq., the provider of any electronic communication service or remote computing service is prohibited from disclosing the contents of such communications absent limited exceptions, which primarily apply in the government and criminal context and is irrelevant in a matrimonial setting. In the federal case of Crispin v. Christian Audigier Inc., 717 F. Supp. 2d 965, 991 (C.D. Cal. 2010), this restriction was applied to bar social media platforms from complying with a civil subpoena duces tecum seeking a user's personal account information, including private messages and nonpublic posts. In fact, the Facebook Help Center explains it is unable to provide anything beyond basic subscriber information and even that information will only be disclosed in limited circumstances.

Evidence

The cloak of online communications affords individuals a shield to engage in cyber-bullying, a soapbox to promote political beliefs, and a forum to relay every aspect (often in painstaking detail) of their lives. Content displayed on the “world wide web” can quickly become viral and readily available for mass public consumption; often to the chagrin of the original author. Within the courtroom, these embarrassing communications can be openly exposed and eternally memorialized if made part of the record or, when warranted, admitted into evidence.

In State v. Hannah, 448 N.J. Super. 78 (App. Div. 2016), the Appellate Division defined social media postings as a “writing” under N.J.R.E. 801. Thus, it is subject to the same scrutiny and methods of authentication. As the Hannah court noted, “[t]he simple fact that a tweet is created on the internet does not set it apart from other writings.” Interestingly, Rule 902 of the Federal Rules of Evidence, was subsequently amended, as of Dec. 1, 2017, to explicitly include electronic data and records as self-authenticating evidence. The corresponding N.J.R.E. 902 has not yet been updated in this regard. As such, it appears the holding in Hannah remains controlling at this juncture.

Assuming the electronic information is evidential, the next question to consider is the form in which it should be presented to the court. Although unpublished and non-precedential, the trial court decision of E.C. v. R.H. (Ch. Div. August 11, 2015) took judicial notice that over the past decade, electronic communications have become commonplace, yet recognized the inherent difficulty in admitting digitally stored information from a device, such as a smartphone, into evidence. In an effort to provide direction, the E.C. decision included a chart summarizing the ideal methods for introducing emails, text messages, social media posts, photographs, audio and video recordings.

Conclusion

Without question, technology has become a vital part of our everyday life. According to the U.S. Census Bureau, approximately 83% of all New Jersey households maintained a broadband internet subscription as of 2017. Our judiciary has slowly transitioned into the digital era with the introduction of CourtSmart, implementation of eCourts across all practice areas, and the availability of Supreme Court arguments via webcasts. On the other hand, our court rules and statutes remain vastly outdated while the case law provides minimal guidance surrounding technological advances. As attorneys, we must remain vigilant regarding any developments in this arena, as today's Snapchat can quickly become yesterday's MySpace.

Alyssa Engleberg is of-counsel at Ruvolo Law Group in Morristown. Michelle A. Levin is an associate at the firm. Both Alyssa and Michelle practice exclusively in the area of family law.