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It’s Complicated When is a Social Media Post Evidence in Domestic Relations?

We have all heard of preservation orders that require a litigant to preserve certain evidence during the pendency of some sort of civil litigation. That evidence in today’s technology age also includes not only emails, voicemails, etc., but all social media content—the biggies being Facebook and Instagram.
Again, these orders are less prevalent in our Domestic Relations Division. This is primarily because most personal financial information is readily available from third-party institutions like credit card statements, bank statements and the like.
Illinois is also a no-fault state. So much evidence that would be ordered to be preserved is i r re l e v a n t .
However, there are two main areas in our division where preservation orders can be most effective.
Certainly in custody cases, information on social media is important to the issue of what’s in the best interest of the children. Secondly, in cases where a litigant is trying to prove cohabitation to terminate a maintenance obligation, the issue of whether there is a de facto marriage between the ex-spouse and a third party turns on the totality of the circumstances which includes relevant evidence on all fronts, including social media.
If the alleged cohabitants travel and spend time together, it is typically memorialized in some way on social media. Usually, the fundamental nature of their relationship is embedded in their Facebook accounts, Instagram accounts and the like. That evidence can be easily deleted once there is a petition filed alleging cohabitation.
It is important for the court to understand that this potential destruction of evidence is most relevant in cohabitation proceedings, and if requested, enter a preservation order. If a litigant that believes that evidence may be destroyed on social media, they should file a motion for an ex parte emergency preservation order concurrently with filing their underlying cause of action.
Filing this motion both ex parte and on an emergency basis assures that the spouse or former spouse will not destroy relevant evidence on the applicable issues after learning of the filing of the case against him or her. This is most important in a cohabitation case where the alleged cohabitant would be tempted to delete evidence on social media evidencing their de facto marriage since they would arguably have no legal obligation to preserve such evidence until discovery was later propounded against them.
The 2nd District Appellate Court has recently opined as to whether the typical preservation order is an injunction requiring the pleading and proving of the elements of an injunction versus simply an order issued pursuant to the rules of discovery. Zitella v. Mike’s Transportation LLC, 2018 Ill. App. 2d 160702.
In Zitella, upon the filing of the underlying cause of action, the trial court entered an order requiring the defendants to preserve all books and records relative to their business — both physical and electronically stored. Defendants then appealed trial court’s refusal to vacate the order alleging the appellate court had jurisdiction because the order was an injunction and that plaintiffs failed to allege sufficient facts entitling them to injunctive relief.
Plaintiffs argued that the court order was not an injunction, rather, it was a preservation order pursuant to the rules of discovery and thus the appellate court had no jurisdiction.
The court acknowledged that in determining whether an order is an appealable injunction, they look to the substance, not its form, and that its policy is to broadly construe the meaning of the term “injunction.” While the court defined an injunction as a judicial process requiring a party to do a particular thing, or to refrain from doing a particular thing, it did acknowledge that not every order with such a requirement is an injunction.
They recited the long-standing exceptions which are ministerial or administrative orders that regulate only the procedural details of the litigation.
Examples of such are subpoenas, discovery orders and orders relating to the court’s control of its docket. The court pointed out that these types of orders do not affect the relationship of the parties in their everyday activities apart from the litigation and, therefore, these orders are distinguished from traditional forms of injunctive relief.
The court further acknowledged that there was no Illinois case expressly holding that an order to preserve records is an injunctive order. The court agreed with the plaintiffs who argued that the preservation order was a “garden variety discovery order” which merely required defendants to preserve specified evidence and was akin to an order compelling production of documents.
These preservation orders are an important tool in our area, especially given the fact that the information posted on social media these days has grown exponentially in recent years and have become important and relevant proofs in our domestic relations litigation.

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Katz & Stefani, LLC
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