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