The Request for Production You Never Saw Coming: Profiles as Evidence

Dating is not always easy. Dating outside of a marriage is just asking for trouble.

The key evidence in a recent marriage fraud case was the Defendant’s profile. Now, there was other substantial evidence in the case, but the evidence the court spent the most time on was a witness from[1]

The Defendant was a Bulgarian national in the United States on a student visa. The month her visa was to expire, she married a man from Bulgaria. After an investigation by INS, the Defendant was charged with marriage fraud.

The evidence included the following:

· An updated profile after the marriage for continued dating;

· Profile said “never married;”

· Communicated with others on after “marriage.”

The evidence was sufficient to show the Defendant knowingly entered into a fraudulent marriage for the purpose of obtaining immigration benefits.

The explosion of online dating, social networking sites and other online activity is fueling a never ending creation of electronically stored information. Effectively using this information is a new challenge for lawyers. For example, if a or Facebook profile is evidence, how to you capture it? Can a paralegal just print it? Should you save it as a PDF? Do you need an expert to collect the webpage with special software? The answer is: “It depends on the facts.”

More importantly, how do you authenticate this electronically stored information? If you do not want a situation where your paralegal may have to testify, an outside expert may be necessary. This person might be a consultant hired to collect the information from the internet or a witness subpoenaed from the website.

Many lawyers’ heads spin at the idea of an online personal ad being evidence. However, we live in a world where people post their lives online. The electronically stored information is waiting online; whether or not it is relevant is for lawyers to investigate.

[1] United States v. Dimitrova, 266 Fed. Appx. 486, 488 ( 7th Cir. Ill. 2008 )

Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016 and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.