by Chris Meuse
Ask yourself: How long has it been since you mailed a love letter? When did you last have film developed? When was the last time you went to your bookshelf to find the answer to a nagging question?
Now ask: How long has it been since you checked Instagram? When was the last time you sent a text? How many things have you Googled today?
Unless you have embraced a low-tech, hipster renaissance (à la Dream of the 1890s episode of “Portlandia”), chances are that there is a stark difference between your answers to the two sets of questions. Family law litigants are no different, so discovery of electronically stored information (ESI) in family law cases is a must.
ESI is any type of information that is created, stored or retrieved in electronic, magnetic or digital form. The most sought electronic data in family law is electronic communications. But attorneys who limit their ESI requests to emails and texts are missing information that could make a client’s case. Information, in its native format, such as images, audio files, videos, voicemail, temporary files, deleted files, backup files, website files, cache files and cookies can contain a wealth of data or metadata that could substantiate a claim or quash an allegation from the other side.
For example, each time a person visits a website on a computer or mobile device, temporary internet files download on that device to allow websites to load more quickly the next time the user visits the sites. This process is called caching. While creating a cache may help a party quickly access favorite websites, it also creates an extensive record of internet activity that is not cleared by simply deleting a browser history. This data, if requested and produced, can be beneficial in a divorce or custody suit, when a party may be engaging in nefarious activity online. If anything, just imagine how fun it is cross examining your opposing party based on their browser history!
Not only knowing what electronic data is but also where to find it is crucial to successful e-discovery. Litigators should request electronic data from desktop and laptop computers; hard drives and portable storage devices, such as flash or thumb drives; GPS devices; cloud-based storage programs; and social media accounts. Of course, one of the most valuable sources of information in family law cases is the smart phone, a device aptly named for what it can do—but not for what parties do with it. A lawyer can uncover most of the e-dirt on a family law litigant from their phone, as we tend to rely on phones for everything.
Those seeking electronic information should also specify the format in which the opposing party should produce ESI. If possible, request ESI in its native format (the form in which it was created) instead of as hard copies or in a static format. Native production lets the reviewing party look at the electronic information’s metadata. Metadata is information describing the characteristics of ESI. It can show how, when and by which device the ESI was created, accessed or modified and how the ESI itself is formatted. This information can be key in establishing the authenticity of a piece of electronic data.
As analog days fade, electronic discovery is emerging as an essential family law litigation tool. Clients lead their lives in an electronic world, as do their attorneys. It’s time lawyers’ standard practices enter that world too.
Chris Meuse is Board Certified in Family Law and a shareholder at KoonsFuller, P.C. He can be reached at firstname.lastname@example.org.