Professor Lex Web Posting

Dear Professor Lex,

My client, in a divorce case, has, throughout the pendency of the case, been the victim of conduct by her spouse that is causing her substantial emotional distress. Her spouse has been posting inappropriate and untruthful content about her on several social media websites. Recently, the posted content was deleted from the websites. Do you have any thoughts as to possible courses of action I should take?

Dear Practitioner,

Your case presents many issues. Without knowing the content of the published material, we can only suggest some options you might want to consider. First, you should immediately attempt to prohibit your client’s spouse from any further inappropriate publications and further destruction of the web postings by obtaining an ex parte order requesting cessation of such conduct. MCR 3.207(A) provides, in part, "[t]he court may issue ex parte…orders with regard to any matter within its jurisdiction…."

Second, as your case involves electronically stored data be mindful of MCR 2.302(B)(5), which states:

Electronically Stored Information. A party has the same obligation to preserve electronically stored information as it does for all other types of information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.

If your client’s spouse has failed to preserve any electronically stored data as required by MCR 2.302(B)(5), the court has the inherent authority to fashion a possible remedy. In Brenner v Kolk, 226 Mich App 149, 159, 573 NW2d 65 (1997), the court dealt with the issue of "whether a trial court in Michigan may sanction parties for the loss or destruction of evidence as an exercise of its inherent powers."

The Kolk court stated, in part:

Michigan courts have recognized that courts have the inherent power to take a number of various actions. In addition, without specifically mentioning the inherent-power doctrine, this Court recently recognized a court's authority to sanction litigant misconduct, even when there is no statute or court rule addressing the particular form of misconduct, based on a court's fundamental interest in protecting its integrity and that of the judicial system. Id. at 159-160.

The Kolk Court concluded:

…in a case involving the failure of a party to preserve evidence, a trial court properly exercises its discretion when it carefully fashions a sanction that denies the party the fruits of the party's misconduct, but that does not interfere with the party's right to produce other relevant evidence. See Lewis v. Telephone Employees Credit Union, 87 F.3d 1537, 1557–1558 (C.A.9, 1996). An appropriate sanction may be the exclusion of evidence that unfairly prejudices the other party or an instruction to the jury that it may draw an inference adverse to the culpable party from the absence of the evidence. Id. at 161.

Additionally, a forensic expert could be useful in examining the electronic device(s) from which the publications were made. MCR 2.310 sets forth the procedure and scope for such inspections. Such experts, among other things, can ascertain if anything was erased from the device(s).

If the publications constituted defamation or other tortious conduct, consider bringing civil litigation against your client’s spouse.

Answer respectfully submitted by Harvey I. Hauer and Mark A. Snover.

The above response is not meant to serve as a solution to a case. That would require complete disclosure of all facts in the case, including client consultation. Rather, the intent is to provide informal guidance based upon the facts that have been presented. The inquiring lawyer bears full legal responsibility for determining the validity and use of the advice provided herein.

Please send questions for Professor Lex to Hhauer@hauersnover.com or Msnover@hauersnover.com. Include "Professor Lex" in the e-mails subject line.