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In a lengthy opinion following a discovery motion in a personal injury case, Judge Richard Walsh of Franklin County, Pennsylvania ordered Plaintiff to disclose her login information for her Facebook account.  Defense counsel had argued that Plaintiff had previously posted photographs and comments about her going to the gym and enjoying activities that she had previously testified under oath that she could no longer do as a result of the accident.

Apparently, at some point in the past, Plaintiff’s Facebook profile was “public” and accessible by defense counsel.  On that basis, the judge granted defense counsel unfettered access to Plaintiff’s Facebook account.   The judge wrote in a footnote, “The Court does not hold that discovery of a party’s social networking information is available as a matter of course. Rather, there must be a good faith basis that discovery will lead to relevant information. Here, that has occurred because Jennifer Largent’s profile was formerly public. In other cases, it might be advisable to submit interrogatories and requests for production of documents to find out if any relevant information exists on a person’s online social networking profiles.” However, despite the footnote commentary, Judge Walsh ruled that Plaintiff has to give over her username and password for her Facebook account thereby granting defense counsel access to Plaintiff’s messages and chats that are never “public” or accessible except to the individual to whom such messages are sent.  In addition, by allowing unfettered access to Plaintiff’s account, Judge Walsh’s ignored his own observations that defense counsel was only entitled to information that could lead to discoverable evidence.  One has to wonder if Judge Walsh understood the overly broad nature of his order and if Plaintiff’s attorney tried to protect his client by arguing that such ruling was overly broad and intrusive.

This author only has access to the court’s order and knows nothing else about this case.  However, it seems clear that Judge Walsh is unfamiliar with the multiple functionalities of Facebook.  One wonders if he knew he was granting access to chat logs and private messages in addition to “publicly” posted information. One also wonders if Plaintiff’s own attorney possessed enough information about the various components of Facebook to object to the Court’s ruling as overly broad or to offer less intrusive remedies to permit access to properly discoverable information while still protecting  his client’s private (and irrelevant) information.

Another Pennsylvania judge wisely crafted a much more narrow remedy for this problem.  This past June 2011, Magistrate Judge Carlson, of the Federal District Court of the Middle District of Pennsylvania, struck a careful balance between the litigant’s rights to discover relevant information and the opposing party’s right to keep private, irrelevant matters private.  Thus, unlike Judge Walsh who ordered a Plaintiff to hand over her user name and password, Judge Carlson ordered an in camera review of the Facebook page of the party’s Facebook page and then ordered disclosed only those items it believed could lead to discoverable evidence.

What is concerning is the general lack of knowledge within the Bar and the judiciary about other remedies that are readily available to address access to another party’s social media account.   Judge Walsh could have issued a protective order that limited the use or dissemination of Plaintiff’s Facebook information or ordered in camera review by an independent third party.

Instead, Judge Walsh gave defense counsel a twenty-one day period in which defense counsel could rifle through Plaintiff’s Facebook account accessing all settings, messages, chat logs, photo albums, and the like. (While defense counsel, whom I do not know, is likely an attorney of the highest ethical caliber, Judge Walsh’s order contained no restrictive language to protect Plaintiff’s information and to prevent defense counsel from sharing it with others, including his own client.)

While I disagree with Judge Walsh’s overly broad order, I do agree that posts to one’s Facebook Wall could reasonably be considered public posts even if the account is restricted. Therefore, such “Wall posts” are and should be discoverable as noted by Judge Walsh.  (My guess is that this is the only information Judge Walsh intended for defense counsel to obtain, but if he did not use or understand Facebook, he would not know that there is much more to Facebook than Wall posts.)

This flawed ruling is likely to happen again so be forewarned and do not let it happen to you if you are a litigant or to your client if you are the attorney.  The best way to access historic Facebook data is to obtain information through the Facebook’s data downloader.  Such records can easily be downloaded and then third parties could be ordered to review the information and remove any protected material or materials not likely to lead to discoverable information.  This simple solution is not only less intrusive but is also likely to produce more accurate and admissible evidence.

In an era where many people think Mark Zuckerberg is starting to look a lot like the new J. Edgar Hoover because he keeps a record of every stray photo, comment, or poke ever posted by a Facebook user, lawyers must educate themselves and their clients about the realities of social media and advocate for their clients by keeping abreast of social media and other uses of the Internet.   Lawyers who do not pay attention to how the world and their clients operate technology run the very real risk of losing not just cases and cash, but also their licenses to practice law.

It is an honor to post this guest blog by the Honorable Barry W. Knobel, former Family Court Judge, now running Knobel Mediation Services, LLC.

Judge Knobel provides an incredibly insightful explanation of our Supreme Court’s recent opinion in Lewis v. Lewis. This case changes the landscape of practicing family law in a positive way. Now, the appellate courts may review and reconsider issues that were formally left solely to the discretion of the trial judge. This ruling is a positive stance by our Supreme Court because it allows the Court to insure consistency amongst the trial bench.

“During the years I have practiced law, and especially family law, I would guess there have been most probably a dozen appellate court opinions which could be categorized as having altered the “family law landscape” in terms of how we practice family law from the first client interview through a family court trial or final hearing (see: Johnson v. Johnson [alimony]; Panhorst v. Panhorst [equitable division of marital property]; McCrosson v. Tanenbaum and Paparella v. Paparella [custody]; Floyd v. Morgan [modification of child support] and Webb v. Sowell [college "support" for an adult child] to name a few of those “game changers”).

Yesterday, the South Carolina Supreme Court filed an opinion which will have the equivalent of creating a seismic shift in the appellate court world, and one which will be discussed and debated in the legal circles of this State for years to come. The opinion will also change the way in which family court judges issue their written instructions for final orders and/or craft the orders which they author, and in crafting these orders, it will also require the family court judge to be even more sensitive to the development of his or her trial record. For attorneys who are skilled both inside the family courtroom and inside the appellate courts, the decision in this case will give them an emboldened new sword-and-shield. Finally, and unfortunately, for those family law attorneys who have never known “how to protect your trial record”, this opinion will either force you to learn how, or it will force you to call your malpractice insurance carrier to up your policy limits.

Please take a moment of your day to read and digest the artfully crafted majority opinion written by Associate Justice John Kittredge in the case of Lewis v. Lewis . Of interest and significance to me, personally, is that Lewis was an unpublished 2008 Court of Appeals decision (2008-UP-645) in which the issues on appeal centered on the value of the marital residence (the family court judge accepted the wife’s expert’s appraised value) and the court’s award of expert fees. And yet, the South Carolina Supreme Court granted a writ of certiorari and used this virtually unknown case to clarify, but certainly redefine, the “abuse of discretion standard” which has been a bulwark in the practice of family law and a companion to every family court judge.

Without taking a great deal of your time, but to give you a gist of what you will read in Lewis, Justice Kittredge writes: “We take this opportunity to give historical context to the appellate court standard of review of family court factual findings. … Our standard of review, therefore, is de novo. Our modern day usage of the term “abuse of discretion” does not comport with our constitutionally authorized standard of review”.

For the family law attorney, I believe that Lewis will either force you to take harder looks at the “certainty of settlement” of your cases, or will force you to create as perfect a trial record as you can with the intention of now satisfying not one, but two audiences…first and obviously, your family court judge, but, if you fail to prevail, then your appellate courts (both appellate courts) if your clients can afford to appeal. If you fail to prevail at the trial level, then you will most certainly hope that the judge’s order is (1) poorly crafted and (2) contains some findings of fact unsupported by the trial evidence and testimony. Most certainly, at the appellate level, Lewis has thrown open the door wider for you, and given you a potential safety net, than at any time in the recent past.

For the family court judge, I would believe that Lewis will require that final orders are detailed enough to not only support the judge’s decision, but also to support the evidence and testimony in the trial record…and in that order of concern.

Finally, I don’t know why – and of course I will never know why – the Supreme Court selected this unpublished opinion as the vehicle to sharpen its appellate sword; however, I can only guess that our Supreme Court wanted to send a very clear message to the entire bench (at all levels) and bar that, in matters of equity, it is also “the ultimate and final trier of the facts”.

There has been a paradigm shift at this level, and I would urge that you study this case and know how to use it in the future.”

Barry W. Knobel
Knobel Mediation Services, LLC
111 Sharpe Street
Post Office Box 22 (Preferred mailing address)
Anderson, South Carolina 29622
Telephone: 864.226.3500
Fax: 864.226.3544
email: barry@knobelmediationservices.com
website: www.knobelmediationservices.com

The Big Thing Celebrities Fight Most About When They Divorce-And Why You Should, Too, by guest author Jeffrey A. Landers, CDFA, CRPC of Bedrock Divorce Advisors, LLC.

We’ve all heard stories about celebrity divorces that become caustic and bitter disputes, fought tooth and nail in the courts for months –and sometimes even years.

But, why are these cases so complex and difficult? What could possibly cause such a long, protracted fuss?

The answer is simple. Typically, the big thing celebrities battle most about when they divorce is this:

Intellectual Property Rights

And quite often, these are rights you should be fighting for, too.

Without question, no one “enjoys” dividing marital property. Remember the famous scene from When Harry Met Sally when the recently divorced Harry (Billy Crystal) urges his starry-eyed friends Jess and Marie to label their belongings?

“Do me a favor –for your own good,” Harry says. “Put your name in your books right now, before they get mixed up and you don’t know whose is whose. Because some day, believe it or not, you’ll go fifteen rounds over who’s going to get this coffee table –this STUPID, WAGON WHEEL coffee table!” Classic.

Of course, as a Divorce Financial Strategist(TM), I totally understand what Harry was trying to say. But, in all honesty, there’s a lot more to it than that.

Sure, divorce requires dividing marital property such as homes, bank accounts, retirement plans, and yes, maybe even coffee tables (especially if they are antiques). But, in many cases, women neglect to realize that divorce doesn’t only split tangible belongings.  Divorce can impact intellectual property rights, too, and depending on your individual circumstances, these rights can be the most valuable of all.  They can be worth thousands, if not millions, of dollars.

Celebrity couples (and their attorneys) are well aware of the value of intellectual property rights –and that’s precisely why celebrity divorces can be so contentious.

As a point of reference, consider this: The divorce dispute between Michael Douglas and his first wife, Diandra, in now entering its fourteenth year! Within the last few months, Diandra filed suit claiming that she is entitled to half Michael’s earnings from Wall Street: Money Never Sleeps, a film released in 2010. Why? Because in their initial divorce settlement (back in 2000), Michael agreed to pay Diandra half of the acting earnings he accrued while they were married, including any residuals, merchandising and ancillary rights.

Reportedly, their agreement also contained language that stated Diandra would be entitled to additional money from any future “spinoffs”. According to her latest suit, Diandra contends that since the new film involves a character that Michael developed in the original Wall Street (which was filmed during their marriage), she is entitled to half of his earnings from the new movie, too.

All this may seem fairly straightforward, but it’s not. Here’s the complication. Diandra’s entire case now revolves around this single, seemingly picayune, point: Is the new movie a spinoff or a sequel? If it’s a spinoff, she gets half. If it’s a sequel, she gets nothing.

Or, in other words . . . it’s all about intellectual property rights.

If you’re considering divorce, there are a few essential points you need to know to better understand how the split could impact your intellectual property.

For starters, let’s be clear about who may have intellectual property. If you’re an author, songwriter, artist, poet, actor, designer (software, website, fashion, packaging, architectural, etc.) . . . or if you’re an inventor, entrepreneur or business owner . . . or if you have a website, logo, tag line, articles and/or white papers you’ve written . . or (I think you get the idea) . . .then you have intellectual property.

Also, understand that there are four main types of intellectual property:

1.     Patents

2.     Trademarks

3.     Copyrights

4.     Royalties and other contractual rights

And any of these may be considered marital property, which means they may be divided during divorce.

(For a more detailed discussion, see my article about the differences between marital property and separate property.)

Rules about how intellectual property can be divided vary from state to state, but the general rule of thumb is this:

Value that’s created during the marriage must be divided. And, by extension, any value that’s created before or after the marriage is typically excluded from division.

In Community Property States, both spouses are usually considered equal owners of all marital property, so any value created from intellectual property would be split 50-50. There are nine Community Property States:  Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin.

The remaining 41 states are known as Equitable Distribution States, which consider factors such as the length of marriage, the age and health of the parties, their income and future earning capacity and many other factors when determining a settlement. Settlements in these Equitable Distribution States do not need to be equal (50-50), but they should be fair (equitable).

(Note: some states have laws with both Community Property and Equitable Distribution characteristics, so always consult with your divorce attorney to ascertain which laws are specific to your state and situation.)

Regardless of what state you live in, what’s referred to as “creative control” typically remains with the inventor or creator of the intellectual property. Think about it for a minute and you’ll realize this is a reasonable approach –it usually maximizes future income potential, which obviously works in the best interests of both parties.

Intellectual property rights are just one of many assets that will need to be divided and will have financial and tax implications. Having a qualified divorce financial planner on your team can not only keep you out of trouble, but he/she can also help secure your financial future. After all, at the end of the day, you may not want that awful, wagon wheel coffee table –but you may, indeed, want your fair share of any patent, trademark, copyright or royalty payments.

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Jeffrey A. Landers, CDFA™ is a Divorce Financial Strategist™ and the founder of Bedrock Divorce Advisors, LLC (http://www.BedrockDivorce.com), a divorce financial strategy firm that exclusively works with women, who are going through, or might be going through, a financially complicated divorce. He also advises women business owners on what steps they can take now to “divorce-proof” their business in the event of a future divorce. He can be reached at Landers@BedrockDivorce.com.

IRS Forms and Information Resources

My good friend, Jean Crowe, attorney and author extradinaire, was overly kind, and quite indulgent (as my friends would say given her “overly” generous compliments) when she wrote the Spotlight article for the January 2011 ABA Family Law ENewsletter. Jean, I remain humbled and grateful for your thoughtful words, and thank you for taking the time to spotlight aspects of my life colleagues and clients might find interesting—and maybe even surprising!

Spotlight On…
by Jean Crowe, ABA Family Law, January 2011, ENewsletter

“The minute you meet Melissa Brown, you will realize that she belies the stereotype of blonde and beautiful (although she is). Melissa practices law in Charleston, South Carolina, handling complex divorce and other family law matters. She is a Fellow in the American Academy of Matrimonial Lawyers (AAML).

Melissa grew up in Charleston, and except for the years spent in college, law school, and her first jobs, she has spent her entire life there. She married her husband, Todd, twenty years ago during her last year of law school, and they have two beautiful and very active teenagers, a boy (Fleetwood) and a girl (Ellen Hudson). Rounding out the family is Golden Retriever Scout, named after Atticus Finch’s daughter in To Kill a Mockingbird. (Scout is 11.)

In 1999, Melissa started her current practice, after clerking for a judge, serving as assistant solicitor and working as an associate in a law firm.

Melissa is truly a “Woman for all Seasons.” Her first job was at a dude ranch in Wyoming, where she quickly became the Director of the Children’s Programs which required her to ride horses, fish, hike, shoot skeet, and enjoy cool summers with no humidity. Next she worked as a waitress in Vail and skied on dry Western snow. Melissa says she was paid to have fun outdoors; however, her mother persuaded her to return East and attend law school. Melissa now loves practicing law, but often dreams of the West.

Melissa was introduced to the ABA Section of Family when she attended the ABA Family Law Trial Advocacy Institute. The great people she met there convinced her that she should attend an ABA Family Law Section meeting. After the first meeting, she was hooked. She found family lawyers at the meeting who quickly became great friends, mentors, and motivators.

Melissa continues to cultivate many hobbies, both indoors and out. She loves outdoor sports, especially tennis, horseback riding, snow skiing, and fly fishing. Her favorite indoor hobbies are making jewelry and tying flies, which she often combines with another favorite activity, enjoying a good glass of wine. She is also an avid reader and loves her Kindle. She even finds time to work out at the gym, both at home and while attending Family Law Section meetings.

Melissa has more than one favorite quote to live by: ‘Be who you are and say what you feel because those who mind don’t matter and those who matter don’t mind.’ (Dr. Seuss); and from Philippians 4:8 (NKJV) ‘Finally, brethren, whatever things are true, whatever things are noble, whatever things are just, whatever things are pure, whatever things are lovely, whatever things are of good report, if there is any virtue and if there is anything praiseworthy–meditate on these things.’”

© 2011 American Bar Association, Reprinted with Permission. All rights reserved. This article first appeared in the January 2011 issue of the ABA Section of Family Law eNewsletter. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.