By David Wilkinson, Esquire
With advances in technology, parties embroiled in divorce litigation will find technology plays a significant role in their matter. Many times, divorcing parties discover technology that they did not even know existed being used against them.
Parties to a divorce and divorce attorneys must familiarize themselves with all aspects of emerging technologies. There is nothing worse than litigating a case in court and observing evidence presented by the opposing side that is detrimental to your case. Technology allows for more and more avenues to gather information and evidence for use in court. By keeping apprised of new technologies and the ways in which those technologies can be introduced as evidence in a divorce or separation case, you will gain a significant advantage.
Information gathering from electronic communications
Another prominent use of evidence in divorce cases is electronic communications. Such communications entail interactions between the parties themselves or between one party and other third persons. Electronic communications often find their way into divorce litigation cases because they may tend to support a party’s contentions, contradict a party’s contentions, or provide other useful benefits. The primary electronic communications used in divorce proceedings include text messages and email correspondence.
Nearly every seasoned divorce attorney will tell their client during their first meeting to be careful what they type in a text or email message. Text messages often find their way into court battles, particularly over child custody and visitation issues. According to the American Academy of Matrimonial Lawyers (AAML), text messages are one of the top three elements of electronic evidence used in divorce court.
It should always be assumed that the content of a text message will be printed and shown to the family law judge. Usually, anything a party writes in a text message can be used in court as a party “admission.”
As a result, there are several key details to remember about text message communications as they relate to divorce matters. First, every divorce litigant should save and backup their text messages. We have come across many circumstances where one party obtains the cell phone of the other party and deletes information on the phone, including texts.
Second, beware that text messages may be used to “impeach” the testimony of a party. In one child custody case, a mother claimed the father continually disparaged her over text messages and in the presence of the child. In court affidavit documents filed before a court hearing, the father denied the mother’s claims and stated he had never disparaged the mother or used foul language to belittle her. At court, the mother introduced into evidence over two years’ worth of text messages between her and the father that she had saved and printed out. In hundreds of text messages the father called the mother every crude name imaginable and used grotesque and foul language. The court did not find him credible and entered custody orders at the mother’s request.
Subpoenaing Text Messages
Divorce attorneys often attempt to subpoena the text communications of the other party. Unless they have dealt with subpoenaing such messages previously, most will find out they will waste valuable time and energy trying to obtain messages that are not kept for very long by the service provider. By the time a subpoena reaches the service provider, the text messages sought have long since been purged. The content of text messages are generally not retained by the service provider for more than a couple days.
Information that a text message was sent or received on a certain date and time can be obtained by subpoena, however.
Of course, when a party attempts to send a subpoena to a cell phone service provider they should expect opposition from the opposing side and resistance from the service provider. First, an opposing party will assert his or her constitutional right to privacy as text messages sent to various persons would largely be irrelevant to the divorce case. Obtaining a copy of all text messages will arguably violate a person’s reasonable right of privacy. Second, a cell phone service provider may invoke its own challenges to a civil subpoena. As mentioned, text message content is typically purged quickly and therefore the provider is usually unable to provide text content even if it wanted to. A letter from the attorney with the subpoena stating that the messages must be preserved is a good method to try and stop the provider from permanently deleting the message content.
Finally, divorce attorneys are always cognizant that the best method to obtain information relating to the opposing party’s text messages is usually by seeking them directly from the party. In some cases, experts may be able to extract text message data by examining the phone itself.
As with text messages, email communications are often used in divorce and custody cases. The same mantras apply to email messages as text messages. Assume everything you write will be presented to the judge in divorce court, and always save and backup your email communications from your computer to an external hard drive or other storage device.
Email communications may have significant impact on a divorce case. An email communication may relate to the existence of assets, the occurrence of an affair, or demonstate income. In one case, a rich housewife deleted all emails and files from a three year period before her claimed separation date from the husband because she was having an affair. She denied the affair and said no evidence existed about the affair. A computer forensic expert was able to recover many of the deleted emails and contradicted the wife’s claims about her affair.
Divorce attorneys routinely serve subpoenas in an effort to obtain email communications. There are two key ways to obtain email communications. By far the best method is to obtain the email messages from the party with control of the computer device. This can be accomplished by serving a demand to inspect the computer’s hard drive, wherein it can then be copied. Data can then be extracted from the hard drive, which may include deleted email correspondence. In situations where email communications are stored in the internet “cloud”, such as Yahoo, Gmail, and other similar email providers, divorce attorneys may serve a subpoena on the email service provider but the Stored Communications Act will apply, as discussed above, and should be handled accordingly.
Computer Hard Drives
A party’s computer hard drive is generally “fair game” in divorce cases. If a computer is jointly owned by the parties then each party has an equal right to possess, use and access the computer. In any circumstance, either party may serve a demand to inspect and copy the computer hard drive that is in the possession of the other party.
Even deleted information on a computer’s hard drive can be obtained by forensic analysis. Obtaining information from a hard drive for use in a divorce case must be obtained properly; otherwise the data extracted will not be admissible evidence in court. Make sure the computer drive is analyzed by an expert. The expert must have credentials to perform the forensic analysis and follow the proper extraction procedures to ensure the information is preserved and unchanged.
Then the expert has to testify in court that they obtained the hard drive, analyzed it using approved methods and extracted the data, establish where the hard drive has kept, verify that the data was unchanged for presentation to the court, and then they will be able to share the results of the analysis in court. In divorce cases, attorneys must designate their forensic expert to the other party before trial if such an expert is going to be used. Divorce lawyers must make sure to follow the rules set forth in the civil procedure rules of their state or else tens of thousands of dollars will be wasted in paying “experts” who will not produce admissible evidence for use in court.
Authenticating and Hearsay Issues Related to Electronic Communications
One of the more difficult issues divorce attorneys face in trying to supply the court with evidence of electronic communications, is authenticating the communications. This means that the attorney must show the court, before the court will accept the communication into evidence, that the communication was actually sent by someone to someone else on the actual date and time indicated on the purported email, text or other electronic communication.
Seasoned divorce attorneys realize the importance of authentication and must have a plan for obtaining “admissible” and authenticated correspondence from the outset of the case.
Further, most written communications are hearsay, which means they are not admissible in court even if the communication was made by a party, unless an exclusion or exception applies. There are a significant number of exclusions and exceptions to the hearsay rule, and divorce attorneys must be knowledgeable of these rules.
Alternatives to Text and Email for Communicating with an Opposing Party
While text messages and email communications provide significant benefits, particularly ease of use and accessibility, there are other communications methods available to divorcing parties to communicate with each other while a case is pending. As an example, many family law courts refer parties to Our Family Wizard to handle all non-emergency communications concerning child custody and visitation. Programs such as Our Family Wizard provide parties with a visitation calendar, appointment chart, and internal “email” communication to allow the parties to send messages to one another.
There are two significant benefits to programs like Our Family Wizard. First, the parties’ account can be accessed by the family law judge assigned to the case who will then have access to all the communications between the parties at the click of a button. Second, the program allows for a check on the email tone before it is sent. For example, a parent may want to send the other parent the message, “Hey, come and pick up your daughter.” The program will alert the sender to alternative phrases that might provide a more appropriate tone, such as “Please let me know when you are going to pick up Catie today.”
Information Gathering from GPS Location Devices
One method divorce attorneys are finally catching on to using to gain information for use in divorce cases is Global Positioning System (GPS) device data. GPS technology can be found in numerous technologies, some of which may surprise some family law litigants.
Every new smartphone contains GPS technology. One in five people in the world use a smartphone, meaning there are approximately 1.4 billion smartphones in use worldwide. Many family law parties are shocked to find out that GPS technology track where they have physically been over the course of days, weeks and months. Using the iPhone as an example, unless modified in settings, the device will track where the phone goes and store the information automatically.
Similar to the procedure described about for extracting data from a computer hard drive, a demand for production of a cellular phone can be issued by either party in the divorce case. The data can be removed from the phone and used in court if the proper procedures are followed.
In some rare circumstances, a party may want to track their own whereabouts using a GPS monitoring service during a divorce case. In situations involving domestic violence and abuse, where one party is falsely accusing the other party of stalking, the accused party might hire a monitoring service to track their whereabouts over a particular period of time, similar to those devices used in criminal matters for house arrest. The expert that conducts the monitoring will then appear in court and testify as to the actual whereabouts of the accused party over a certain period of time to contradict the false allegations.
Additionally, transportation services such as Lyft and Uber track the movements of a person that uses their service. Although it would be rarely used in a divorce case, if a party’s movements and whereabouts were an issue in the case, the opposing divorce attorney may seek to obtain the records of the party’s whereabouts, which may be derived by analyzing the party’s use of such transportation services.
Divorcing parties and attorneys should be wary of attempting to track another person in a divorce case. As of January 2012, the United States Supreme Court, in a criminal search and seizure case, held that the use of a GPS monitoring device without a valid warrant constituted a search under the 4th Amendment. In the context of a civil case, it is unlikely GPS monitoring information of the other party without their knowledge or consent would be admissible. This is particularly the case because secret recordings for use in a court proceeding constitute a criminal act and cannot be used in the proceeding absent a valid exception.
CREATED BY: IN COLLABORATION WITH WILKINSON & FINKBEINER, LLP
By David K. Wilkinson, Esq.
Mr. Wilkinson practices family law exclusively as a founding partner of the law firm Wilkinson & Finkbeiner, LLP. He has been designated as an expert in family law by the State Bar of California as a Certified Family Law Specialist. Mr. Wilkinson is licensed to practice in California and Massachusetts.