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