Text Threads and TikTok: Managing Digital Evidence

I. Welcome to the Era of Digital Evidence

In family law, the line between private life and public post is gone. Custody disputes now play out through text messages, Instagram reels, TikTok videos, and DMs. Effective representation demands fluency in Electronically Stored Information (ESI): identifying it, preserving it, and using it strategically.

 II. What Is ESI—and Where Is It Hiding?

ESI includes any digital data: texts, emails, call logs, social media posts, DMs, photos, videos, cloud storage, location data, smart home logs, and fitness trackers. It lives in devices, apps (iMessage, WhatsApp, Snapchat), platforms (Instagram, TikTok, X), and services (Google Drive, iCloud, Venmo). Most people overlook key data sources—ask detailed intake questions and distinguish between existence and production when drafting discovery requests. Request devices if necessary.

 III. Preserve It or Lose It: The Spoliation Letter

Once litigation is reasonably anticipated, parties must preserve relevant ESI. Make sure to turn off auto-delete on any devices that may be used in litigation. You should also consider sending a preservation letter to your client, opposing counsel, and third parties that uses  specific language listing the data types, date ranges, and platforms that must be preserved. Failure to preserve ESI may trigger sanctions under Federal Rule 37(e) and Georgia law (O.C.G.A. § 9-11-37).

 IV. Getting It: Discovery and Strategy

ESI is discoverable under FRCP 34 and Georgia § 9-11-34—but overly broad requests risk being denied. Be precise and identify date ranges and account names. If possible, request native formats and metadata. Focus the requests on what’s relevant: custody, communication, finances, and misconduct. Remember that social media data often disappears quickly (especially on Snapchat or TikTok)—capture it early and make sure to archive it properly.

 V. Admitting It: Rules on Relevance, Authentication & Hearsay

Authentication (O.C.G.A. § 24-9-901): You must show ESI is what it claims to be. This can be proven through witness testimony, metadata and device extraction reports, circumstantial evidence (usernames, emojis that the person often uses, context), or the admissions by a party. Relevance (O.C.G.A. § 24-4-401): In order for the ESI to be admitted it must be related to the issues being heard, whether they are parenting, safety, finances, or credibility. Hearsay (O.C.G.A. § 24-8-801 et seq.): Digital content can still be considered hearsay (a third party statement being offered as the truth). In order to have the Court admit ESI that might be considered hearsay, you can have the party who created or participated in the ESI present, have the Court deem the ESI a present sense impression or excited utterances (like a Facebook or X post), or have the ESI deemed a statements against interest.

 VI. Ethics and Legality: Don’t Get Burned

Georgia allows one-party consent for recordings, but clients cannot access the other party’s accounts without permission. That could violate the Computer Fraud and Abuse Act or Georgia law. Lawyers must not advise clients to delete or alter evidence. Period.

 VII. At Trial: Using—and Challenging—ESI

When presenting or objecting to ESI, consider:

·       Relevance: Is it tied to an issue? (O.C.G.A. § 24-4-401)

·       Authentication: Is it verified? (O.C.G.A. § 24-9-901)

·       Manipulation risk: Check metadata, timestamps

·       Hearsay: Third-party messages need exceptions

·       Prejudice: Is it more harmful than helpful? (O.C.G.A. § 24-4-403)

·       Completeness: Show full conversations, not snippets (O.C.G.A. § 24-8-822)

·       Cumulative: Avoid repetitive evidence (O.C.G.A. § 24-4-403)

 Use cross-examination, demonstrative exhibits (like Cellebrite reports), and expert witnesses to challenge or defend ESI.

 VIII. Final Thoughts

In today’s family law landscape, digital evidence is central. Mastery of ESI—from preservation to presentation—can make or break your case. Anyone presenting a case in family court must evolve with technology to tell a full and credible story.

 Elizabeth Schneider, Esq. is a trial attorney and founder of Court-Confidence, a litigation consulting firm based in Atlanta. She specializes in courtroom strategy, custody litigation, and digital evidence. Contact: elizabeth@court-confidence.com.