While that’s the straightforward answer to the question �Can private messages be used in Court?’ as with Facebook’s relationship statuses…it’s Complicated.
Way back in the stone ages of social media, lawyers were finding their footing to present screenshots as evidence. Nowadays, creeping on an opposing party’s Facebook page, Insta account, and yes, even AdultFriendFinder and Ashley Madison- is taken as standard operating procedure in almost any family law firm.
But what about the stuff that’s not on your wall? That’s your 3am DM to your bestie, that you type furiously under the covers while your emotionally exhausted toddler is sprawled across your bed because she had another anxiety-induced nightmare.
While they may seem like an ideal place to pour your heart out, those �private messages� can and do end up in front of a judge on the regular
To many people, private messages feel different than posts. Most of us mamas have enough discretion to avoid posting rants about our co-parents on our wall, but feel safer in the relative intimacy of Facebook messenger or Insta’s DM feature.
Scores of cases regarding the use of social media content in divorce have spun through Courts across the US- all the way up to Supreme Courts in some states. By and large, rulings are coming down that say social media content is not protected, and that you can be compelled to turn over your messages to your opposing party.
The legal reasoning behind this is slightly nuanced state-to-state, but the general guiding framework is this: anything that is not subject to the protection of privileged communications is fair game to be requested- or subpoenaed, should you make the ill-advised decision not to comply with requests- by your spouse or their lawyer. �Private’ messages are subject to the same rules of discovery (the fancy legal term used for the process of exchanging information during litigation) as any other communication that’s not privileged.
In general, anything- DMs, emails, text messages- that is not subject to privilege laws must be turned over if requested, and can be presented as evidence. This means that, in general, unless it’s something that you’ve written to your attorney, your pastor, or your doctor, you can be compelled to turn it over to your spouse during your divorce proceedings.
When our firm signs a new client, one of the first things we do is send a friendly little letter outlining clear advice about using social media. To concisely paraphrase, 
it says DO NOT POST ABOUT YOUR CASE ON SOCIAL MEDIA (like we said, friendly). The reason we do this is to protect our clients; we have seen many a mom embarrassed by photos partying at a bar on nights when she had custody, or sporting new Devil-Wears-Prada worthy duds while fighting for alimony (side note: please don’t be this girl!).
But this warning brings us back to the wall conundrum; posting on a social media wall feels public, messaging your girlfriend about the latest jerk move your ex has pulled feels private. The harsh reality is that both can be trotted out in Court…along with your text messages and emails. It’s scary but true.
Additionally, lawyers can capture metadata from your social accounts, meaning that IP addresses, timestamps, and your location can all become evidence in your Court case
In addition to being able to request your DMs, there are easy tech solutions for attorneys to download your social media history. There are private firms and software that exist for the sole purpose of �capturing’ a person’s social media history- everything they’ve ever posted, messaged, and deleted.
