Like many marriages that end in divorce in Texas, the dissolution of the union between Sarah and Mike Brown (names have been changed to protect the innocent) was not done under the most cordial of circumstances. The Browns were married for seventeen years, owned an enviable home outside of Dallas, Texas, and were the proud parents of three school-aged children. Mike had been growing noticeably more distant over the past couple of years and the ideal life they presented in public was a much different reality behind closed doors. Sarah had a strong suspicion that her husband was having an affair and, being adept at searching her way through the newest pieces of technology, decided to check out Mike’s personal computer when he was out of town on business. What Sarah Brown found on her husband’s computer hard drive was enough to make her call a divorce lawyer the next morning, and begin an emotional trial that tested the boundaries of the always-evolving legal world of electronic discovery.
Damaging discovery that an attorney can use against an opposing spouse party in a divorce action or child custody proceeding is no longer limited to a trace of lipstick left on a white-shirt collar or a mysterious credit card bill found during a quick rummage through a briefcase. Today, sophisticated Texas divorce lawyers are more likely to present evidence that comes from cell phone records, Facebook comments, MySpace pages, deleted e-mails, and visits to web sites that were not quite as hidden as planned.
If divorce clients make the mistake of engaging in behavior that is not conducive to a happy marriage, do not think that they are safe from exposure even while driving in their cars. Texas divorce attorneys will tell you that even E-Z Pass toll records can be subpoenaed to prove that they were heading somewhere they had no business being. In addition, a suspicious spouse can attach a Global Positioning System (GPS) device to the family car and later use these recorded routes against your client in court. These days, the notion that every moment of one’s life is for the public eye does not just apply to celebrities and public figures. However, the attorney needs to be sure that the evidence collected is done in a way that does not violate Federal or State privacy laws. What is the point of collecting every condemning email or text message if a Federal or Texas State judge decides the documents are inadmissible in court? Does it matter if the proof of an affair was found on a work computer, a personal laptop, PDA, or a family computer that also is used by the teenage residents for history homework?
There is the dangerous misconception that activities, which take place online, are somehow harmless or at least not as consequential as the same decisions made in real-life. Flirting with a woman on the computer is not the same as chatting with her in a bar, right? With that said, you should be aware that social networking sites are taking steps to make sure that their content is accessible in legal situations. Have you read the fine print before typing a comment to your “friend” on MySpace? This web site and others like it state that, if legal standards are met, user information can be passed on to law enforcement agencies and legal teams involved in divorces.
Family law attorneys who are fighting a child custody battle also scour the internet looking for possible electronic discovery. All that a lawyer needs to find is a few photos of a minor child smoking pot or drinking alcohol posted on a web site and charges of being an unfit parent can be substantiated. Let the words of Dallas family attorney Mary Jo McCurley serve as a warning, “For a lawyer, it’s almost like a ‘ha’ moment. It’s kind of fun when you see something that you can use as evidence [against] the opposing party.” Online activities are just as serious as those in the “real world” and, to the absolute delight of opposing legal counsel, electronic behavior is recorded and never, ever goes away.
Lawmakers and courts at all levels of state and federal government have been scrambling to keep up with the ever-increasing series of questions that new technology brings. What evidence can and should be admissible in court? In what form or predicate should the attorney present the evidence? When is the line protecting the right to privacy crossed? Through amendments to the Federal Rules of Civil Procedure on December 1, 2006, Congress enacted the primary guidelines used to answer such questions and others on the federal level. Through Rule 34(a), Congress added electronically stored information (ESI) as a category of discoverable information. To ensure that this amendment maintained its relevance as new technologies are invented, ESI was defined to be “writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained.” By purposefully using the language, “in any medium,” in the future, the federal courts can require data from technology not even invented yet. If you have had any difficulty keeping up with the new electronic devices that have come on the market in just the last five years (how many versions of the iPhone and Blackberry are there now?), you can understand why the federal lawmakers left such a wide open door.
The corresponding Federal Rule 34(b) measure, passed at the same time as Federal Rule 34(a), allows the requesting party to determine the form in which evidence is presented. Maybe a paper printout is enough to meet your goals in a particular instance. In other circumstances, you may decide that the electronic version must be produced in order to include all background and transmission information. Often times, the full electronic record will be the preferred choice of attorneys and clients alike as a hard copy will not tell the complete story behind a piece of evidence. Only with the information that is stored on a computer or other electronic device will you be able to extract the time at which a particular transaction occurred, any information deleted from the current text, or possibly the date and time at which an online correspondence occurred.
In 2006, Texas was the first state in the country to amend its rules of procedure concerning electronic discovery, and one of only a few states to do so before the federal government made its changes. With this foresight in establishing some guidelines prior to the procedure set by the federal government, Texas has been able to create a different level of responsibility for evidence than what was determined by federal legislation three years ago. Ten years ago, in 1999, our state wrote the Texas Rules of Civil Procedure (TRCP) 196.4, which referred exclusively to electronic or magnetic data. This state law requires that the interested party must specifically request each type of electronic data and specify the form in which the interested party wants the data produced. The responding party may state that the request for retrieval of particular data or information itself is not reasonable, or at least object to the form in which its presentation is requested. If a Texas court orders that the electronic discovery must be made available, the requesting party is responsible for paying the costs to have the information prepared. This detail, known as the “mandatory cost shifting position” is an important legal point for both clients and their attorneys to know. With Rule196.4 at their disposal, opposing counsel will work to prove the requests to be unreasonable and you will be stuck with the cost of production. The director of the Institute for the Advancement of the American Legal System, Rebecca Love Kourlis, has noted that before the prevalence of e-Discovery, five percent of divorce cases actually went to trial. That number has fallen to two percent, mostly because the plaintiff fears the costs that would be associated with gathering e-Discovery evidence.
If you are a family law attorney who is assisting a client through emotional and difficult legal circumstances, I encourage you to be as creative as possible when determining possible requests for electronic discovery. The most effective and proactive participants in divorce proceedings will test the boundaries in this still-uncertain area of law. Some divorce lawyers have even hired investigators with digital forensic tools to do some electronic snooping for their clients. Chances are, if the suspicion is strong, the electronic evidence will be found. As Gateano Ferro, president of the American Academy of Matrimonial Lawyers, shared in an interview, “In just about every case now, to some extent, there is some electronic evidence. It has completely changed our (legal) field.” Just ask former Detroit mayor Kwame Kilpatrick how damaging a flirtatious chat on a Blackberry can be to one’s marriage and professional standing. All financial records certainly should be on the table—items as small as romantic dinners and payment for hotel rooms to a larger issue like entire accounts that were kept secret may have relevance in establishing a divorce settlement. You should request every text message ever sent on a cell phone. If or until the courts decide that messages sent to an individual’s Facebook page cannot be accessed due to a violation of our privacy laws, get a copy of every word typed! Does your spouse have an online calendar program, such as those offered through Google or Microsoft Outlook, which lists daily appointments? If this site shows that he was supposed to be at little Johnny’s baseball game at 4:00 pm but you have witnesses to prove otherwise, you can make the case that your spouse has priorities other than his children. Of course, in light of the Texas law detailed earlier, make sure you have constructed convincing arguments that all of the material you need is reasonable in both its content and requested format.
When it comes to electronic discovery and the Texas legal system, there are still many more questions than established areas of agreement. Divorce attorneys, when they search for case law to be used as binding or persuasive precedent concerning admissibility of electronic evidence, find only a short list of documents to review. And, with new technology emerging every day that is capable of storing financial records, personal conversations, and searches of web sites that are far from G-rated, family law judges can expect that every new estranged couple that comes before them in a courtroom brings the possibility of unchartered territory concerning evidence and what rightfully belongs on the public record. While the general statutes for the submission of electronic discovery have been written on both the federal and state level, the intentionally broad language included in the amendments will mean that difficult judgment calls should be expected for some time to come. Only time will tell how our judicial system decides to weigh an individual’s right to privacy versus the right of an accuser to have all possible evidence at his or her disposal.
When the issues are as emotionally difficult as those that often surround divorce and child custody cases, legal counsel that can guide a client through the process is even more crucial. Electronic discovery is now playing a critical role in more than 75% of divorce cases and, with new ways of hiding and revealing secrets developing all the time, an attorney versed in electronic discovery may very well have the opportunity to break new ground in the courtroom. In ten years, the case law and precedents surrounding electronic discovery will likely be well established by the courts. For now, however, this subject is certainly the “Wild West” of the legal arena. So warn your clients to be mindful of their text messages, their Facebook friends, and their online banking records. Better yet, tell them to be more mindful of maintaining a strong marriage so that there is never a need for an attorney to subpoena their hard drive in the first place.