I have a Blackberry, an I-Phone, a laptop, a personal digital assistant (PDA), a “smart phone”, a thumb drive, a Twitter and a Facebook account, so what do I need to know about my confidential information as I proceed in my divorce?

Anyone contemplating a divorce must proceed with caution when using today’s technology to transmit, store, or obtain information. Such information may be discoverable through legal means that could prove damaging to your desired results.

What is electronically stored information?

It is information found in global positioning systems (GPS), digital printers, e-mail accounts, removable hard drives, thumb drives (aka sticks), cell phones, backup systems, digital cameras, DVD’s, servers, computers, certain types of copiers in addition to data easily found on social networking sites such as Facebook and Twitter. This includes computer-dating websites where “profiles” of an individual have been posted.

A warning for divorce litigants, “Anything posted can be used against you.”

Once social media personal profiles are created, the comments, pictures and videos that are posted to websites are very difficult to erase. While some websites offer privacy options, there is no such thing as 100% privacy. Since your friends have access, they can share it with other friends, which means others have access to these particulars of your life. In an article written by Attorney Sarah E. Murray, of Connecticut published in the American Bar Association, Family Advocate Section, Vol. 34, No. 1, Summer 2011, the warning to divorce clients takes this form:

“When it comes to social networking, any information you post (or that your friends post about you) can be used against you in your divorce case.”

How can I protect my information and what should I tell my Attorney?

Early in your divorce or custody matter, have a frank discussion with your attorney about the issues in your case and whether electronically stored information may affect your desired result. Stored information is highly relevant when issues involve infidelity, financial misconduct, child custody, substance abuse, verbal abuse and dishonesty. One of the best ways to protect your personal information is to limit what you put on the internet and in text messages.

When writing an e-mail to your spouse, assume that a judge will read it. Try to limit the message to essential matters and write in a collaborative tone. It would be helpful for you not to use shared computers such as those in your home, at work or at the library because there is no reasonable expectation of privacy. Securely store your electronic devices, and install password protections on all devices. Change your passwords periodically, and avoid passwords required to be written down. Since you are protected by the attorney client privilege, inform your attorney of any sensitive information you have posted to the internet, through a text message, or information existing in a social media.

What are examples of electronically stored information obtained legally?

During the discovery phase of your case, your attorney can request copies of e-mails you have exchanged with your spouse. Bear in mind that obtaining electronic information does not necessarily make it admissible. The party offering such evidence must authenticate it to establish that a certain person is the author of the message; this may be done during a deposition. Another option for more complicated cases might include the use of a computer forensic expert.

What actions in retrieving electronic information are considered potentially illegal?

In general, if you do not have an ownership interest in the storage device, you do not have lawful access to the stored information without the consent of its owner. There may be exceptions to this general rule, so the best way to know you are obtaining information legally is to ask your attorney.

Using spyware to capture information about suspected infidelity or financial misconduct can run afoul of state and federal law. Likewise, recording your spouse’s telephone conversation or even your person-to-person conversation is illegal, without their express consent.

What information can I dispose of?

There are penalties (sanctions) for what is known as “spoliation”. The accusation is that a person knowingly intended to destroy or alter relevant information to the detriment of the other side. Many jurisdictions have rules and laws that require preservation of evidence for present or future litigation that includes divorce litigation. Before destroying or tampering with any electronically stored information, consult with your attorney about evidence preservation.

What must I know about electronic information in my divorce?

Personal information that is kept confidential by you, remains confidential until you disclose it. Pictures and text comments posted to a social media website such as Twitter or Facebook, by you or others, risks disclosure. Attorney-client communication should be open and honest concerning all matters, including electronic personal information. Using computers that are shared in your home, at work or at the library can be like leaving information on the kitchen table for all to read. Communicate with your spouse respectfully, factually, and succinctly. Use your own personal device, change your passwords periodically, and use encryption software to safeguard personal information.

Reference:

Murray, S.E., Electroncially Stored Information; How e-mail, texting, and your Facebook friends can affect your divorce. Family Advocate, American Bar Association, Vol. 34. No. 1, (Summer 2011).