Electronic Evidence in Divorce and Family Law Litigation

The conventional ways to obtain information in divorce and family law proceedings are well known: (1) Interrogatories; (2) Requests for Production; and (3) Depositions. Typically, interrogatories are aimed at gathering initial information and facts of the case that the opposing party could not recall without reference to particular documents.

Interrogatories in conjunction with Requests for Production then serve to produce the traditional sources of information for a divorce or family law attorney.  Traditional staples include:

(1) Bank Statements;

(2) Individual Tax Returns;

(3) Corporate or Partnership Tax Returns;

(4) Mortgage Statements;

(5) Rental or Lease Agreements; and

(6) Telephone Records.

These documents can then be used in conjunction with depositions to "pin" down the testimony of the opposing party for potential impeachment at trial, or simply to see how the opposing party will respond under oath to particular questions.  Electronic evidence can also be critical as it relates to property and debt division, calculation of child and spousal support, child custody and marital misconduct.

Now, however, we have a broader array of materials with which we can target these traditional discovery tools. These new materials can be used for the same purposes, but they often pose new challenges. They include, but are not limited to:

(1) Home and Work Computers;

(2) Cell Phones and Tablets;

(3) Flash Drives and External Hard Drives; and

(4) Cloud Storage/Vendor's Servers.

Many Computer and E-discovery issues are covered by federal statutes and the Federal Rules of Civil Procedure. However, it is also vital for your attorney to check local rules of civil procedure in your jurisdiction. Below are various applicable Federal Rules of Civil Procedure that sometimes mirror state rules:

Fed. R. Civ. P. 1001(1) - Writings and recordings includes computers and photographic systems.

Fed. R. Civ. P. 26(a)(1)(C)- Obligates parties to provide opponents with copies of or descriptions of documents, data compilations, and tangible things in a party's possession, custody, or control.

Fed. R. Civ. P. 34 - Permits a party to serve on another party a request to produce data compilations (subpoena). This can include word processing files, spreadsheet files, investment data or databases, calendars, browser histories, contact lists, digital photographs, email and social media. These and other miscellaneous information can be found on: hard drives, floppy disks, optical disks, flash drives, network storage, remote storage, cell and smart phones and virtually any electronic source.

In short, it is critical to seek out electronic evidence in divorce and family law litigation.  Unlike the past where this evidence might be found in a filing cabinet in the home, obtaining this evidence electronically may be the way to obtain it with society becoming more paperless.

Keywords: Electronic evidence, divorce, family law