Facebook Posts Including Private Message Posts Are Discoverable

In New York State, if you are involved in any type of litigation, including divorce, most documents and communications, including Facebook posts, Twitter, Instagram, and SnapChap are discoverable.  This means, if the opposing attorney makes a request for those documents and communications, you have to produce them in discovery.

The highest New York State Court (what is called the Court of Appeals) has reaffirmed this very basic principle.  The Court stated that the discovery rules are liberal.  In addition, the Court made it clear, that just because the communication, posts or document is in the “private” portion of Facebook or a “private message” does not shield it from normal discovery.  In making its ruling, the Court noted that there is nothing so unique about Facebook that protects the “private” section of Facebook from discovery. 

In other words, just because you label something as “private” or put into a “private” part of Facebook etc., does not make it privileged or shielded from disclosure on the basis of “privacy.”

The Court did note that there are three categories of protected materials: (1) privileged matter (typically attorney-client communications); (2) attorney’s work product (i.e., attorney’s notes and research); and (3) trail preparation materials.

Furthermore, if you want to protect any documents or communications from discovery, you have the burden of showing the document/communication is privileged or has some other right to protection. 

If you are involved in a divorce case, then you should know that anything you post of Facebook or any other social media site can be discovered by your spouse or ex-spouse.  This is why you need to be very careful in what you do post.

David Badanes and the Badanes Law Office, P.C. can guide you and give you the legal advice you need when it comes to Facebook and other social media sites.  If you are seeking a divorce or have been served with divorce papers, then call David Badanes and the Badanes Law Office at 631-239-1702, email at david@dbnylaw.com or visit our web site: www.dbnylaw.com.  The Badanes Law Office has offices in Northport (Suffolk County) and in Uniondale (Nassau County).

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Can You Serve Divorce Papers on Facebook?

You may have heard that a New York City lower court Judge allowed service of the Summons in a divorce action via Facebook. That particular case does not mean that the Courts will routinely allow you to serve the Summons (especially, in a divorce action) via Facebook.

In a divorce action, the Plaintiff (the person who filed for divorce) must serve a Summons to the Defendant (the person being sued for divorce) stating that the Plaintiff is seeking a divorce and the Summons will list the general remedies that the Plaintiff is seeking (for example, child custody, child support, spousal maintenance).

The standard method of serving the Summons in a divorce action, or as the Court describes it, the method of first resort, is by personal “in hand” delivery. Courts prefer that the Summons be served by personal “in hand” delivery as a divorce action affects serious financial and familial consequences.

However, if a Plaintiff can demonstrate that it is “impracticable” to obtain in-hand service, the law provides a few alternative methods of service. They are often referred to as “substitute service”, and they may be: (i) serving a person of suitable age and discretion at the Defendant’s “actual place of business, dwelling place or usual place of abode”; (ii) affixing the Summons to the door of a Defendant’s “actual place of business, dwelling place or usual place of abode and then following that up with mailing a copy to the Defendant’s last known residence or actual place of business; or (iii) using what is called “publication service”, where the court will direct that the Summons is printed in a newspaper.

Finally, a court can grant an alternate means of service that fits the particular circumstances of the case. This is what was used in the case that allowed service via Facebook.

In that particular case, the Court undertook a very careful analysis of why it was acceptable to serve the Defendant via Facebook. First, the Plaintiff was able to show that all the other methods were impracticable, as the Defendant was nowhere to be found, had no fixed address and no place of employment. Second, the Plaintiff hired an investigative firm to try to find the Defendant and they were unable to do so. Third, there was no record of the Defendant in the Department of Motor Vehicles.

The Plaintiff was also able to address some of the Court’s concern as it relates to service via Facebook. The Court noted that anyone can open a Facebook account, and therefore, just because a Facebook account says that it is “David Badanes” Facebook account, doesn’t mean that it actually is David Badanes who owns that account. In this case, the Plaintiff was able to show several Facebook exchanges between her and the Defendant which seemed to authenticate that the account was really the Defendant’s account.

The Court was also concerned that the Defendant may not be diligent in logging on to his Facebook account, and thus, he might not see the Summons posted on his account for weeks or months. Here, the Plaintiff was able to show that the Defendant regularly logged on to his account. Furthermore, the Plaintiff did have the Defendant’s mobile telephone number and she was able to send him a text message alerting him that a divorce action was posted on to his Facebook page.

Finally, the Court addressed what is the more traditional and typical method of service, namely, publication service. The Court noted that service by publication is an approved method of alternative service that is routinely used. However, the Court also stated that publication service is actually a very poor way to provide notice to a prospective defendant. The publications typically chosen to advertise that a divorce summons has been filed are either rarely read or they are prohibitively expensive (one newspaper charges $1,000.00 per week for running the notice).

Although, that particular Court allowed service by Facebook, it is important to note that another Court, located in Brooklyn, held that Facebook service was not allowed for that case. In the Brooklyn case, the Defendant’s Facebook page had not been updated for over two years and there was no communication between the Plaintiff and the Defendant on the Facebook page. This led the Brooklyn Court to question whether the Facebook account actually belonged to the Defendant. The Brooklyn Court also noted that even if the Plaintiff could show that it was the Defendant’s Facebook account, that since the Defendant had not accessed his Facebook account for over two years, there was no indication that the Defendant would log on to his Facebook account to discover the Summons.

When it comes to serving the Summons in a divorce action, you need an attorney that understands the rules.  David Badanes and the Badanes Law Office can make sure that if you need to serve your Summons by alternate service that the Court will approve of the chosen method.

If you need an attorney for your divorce, call David Badanes and the Badanes Law Office at 631-239-1702, email at david@dbnylaw.com or visit our web site: www.dbnylaw.com.  The Badanes Law Office represents clients in Suffolk County, Nassau County and in New York City.

The Badanes Law Office has offices in Northport, Garden City, Brooklyn and Manhattan.

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