Understanding Electronic Discovery in Divorce Litigation
We are surrounded by electronic screens in every aspect of our lives these days. Our mobile phones are never out of reach, we stare at computer screens all day and then stare at a television screen in the evening, which is likely to be streaming content from the Internet. Because we use electronic devices constantly, we are creating and amassing tons of data about our lives, our coming and going, our communications our purchases and business and financial transactions. This data includes our electronic address book of names, phone numbers and email address and photographs. This data is a goldmine of information about our daily habits, how we spend our time and our money. Family law attorneys can use e-discovery as a tool for gaining insight into what goes on in an individual’s life that might conflict with what they are reporting.
What is electronic discovery?
In divorce litigation, discovery is how your attorney finds the facts and documents needed to complete your divorce. There are several tools that aid in the discovery process including depositions, interrogatories, Requests for Production of Documents and Requests for Admissions. Electronic or e-discovery as it has come to be called is the process by which electronic or digital data is searched, located and secured with the intention of using it as evidence in a civil or criminal case according to TechTarget.com. Attorneys use e-discovery to find documents, audio, video files and photographs that are stored in a digital format on computer hard drives. This ESI (electronically Stored Information) includes browser history files, cache files, cookies, activity logs and metadata. Metadata contains encrypted data about the data included the geolocation of where a photo was taken and when documents were created, altered or deleted.
An article in the Tennessee Bar Association Journal mentions the importance of considering carefully the manner in which the materials are obtained by the client. The author writes, “The Tennessee Personal and Commercial Computer Act[4] and the United States Code[5] additionally make it a criminal offense to access stored communications without the requisite authorization. ” However, when a couple is still cohabitating and they share access to the same computer it becomes a matter of ethics about whether to access the information and whether or not the materials will be admissible in court.
Social media’s role in e-discovery
In an era of “Facebook divorce,” people’s social medial profiles are another source of information when it comes to e-discovery. In a 2010 survey conducted by the American Academy of Matrimonial Lawyers, 81 percent of divorce attorneys surveyed said that they had seen an increase in the number of cases that used evidence found on social media in divorce cases. In another survey, 56 percent of those polled reported that they knew their partner’s passwords, even if their spouse was not aware that they knew it.
Just by browsing a social media profile you can find a lot of useful information about the person. You can find out the location of their status updates or where they were when they uploaded photos, the location where the photos were taken, and the place where that person has “checked in.” You can see who the other party is communicating with as well.
If you are going through divorce litigation, be aware that these same kinds of information is discoverable about you as well. If you are someone who uses social media you would be well advised to stop posting information that would not be helpful to your case.
E-discovery is a relatively new and rapidly expanding tool that can be helpful in divorce litigation since we all have such a significant digital footprint. Our experienced Franklin family law attorneys are aware of how to leverage e-discovery and how to challenge the other side’s use of it in divorce litigation.
If you are thinking about getting a divorce, you are welcome to contact the Law Offices of Adrian H. Altshuler & Associates today. We have offices in Brentwood and Columbia as well, to better serve you.