Electronic Discovery and the Use of Social Media in a Family-Law ...

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Electronic Discovery and the Use of Social Media in a Family-Law ...

Electronic Discovery and

the Use of Social Media in

a Family-Law Matter

Professor Rachel K. Alexander, USD Law

Friday, April 15, 2011

For the State Bar’s Committee on Continuing Legal Education


Introduction

Law Professor at USD

� Director of Legal Writing

� Prior legal practice

� E-discovery experience

�Practical

�Academic

�Rachel K. Alexander, E-Discovery The Cartoon Practice, Caveat

Theory, and Precedent: Finding the Right

Pond, Lure, and Lines without Going on a

Fishing Expedition, 56 S.D. L. REV. 25 (2011)

Family-law experience


Dual Applicability of Today’s Information

� While we will focus on socialnetworking

issues in family-law cases,

we will also

�Talk about general concepts of ediscovery

�Look at good e-discovery practices

for all types of cases

� So, if you’re a family-law specialist . . .

�Bear with me during the general

matters

� Note, bibliography provided at end of

presentation


Overview

� Why care about e-discovery?

� Spoliation and the duty to preserve

electronic information

� Sources and scope of ESI

� Looking at the client’s “informal discovery”

� Informal and formal e-discovery (seeking and

producing)

� Evidentiary issues in e-discovery

� Lots of emphasis on ethical issues (until codes and

rules catch up with technology)


Why E-Discovery?

� E-discovery amendments, Federal Rules of Civil Procedure

� States likely to mirror federal amendments

� As of September 2009, 23 states had adopted ediscovery

rules mirroring or similar to FRCP amendments

� South Dakota

�No procedural amendments yet, but . . .

�South Dakota Rules of Professional Conduct

�Rule 3.4 – "A lawyer shall not: . . . unlawfully

obstruct another party's access to evidence or

unlawfully alter, destroy or conceal a document or

other material having potential evidentiary value

. . . ."

�Comment – Rule applies to "evidentiary material

generally, including computerized information"


Why E-Discovery?

� Reflection of dominant presence of

electronics in personal and

business worlds

�1.4 billion email users in 2009

�1.9 billion email users by 2013

�247 billion emails sent per day

in 2009

�780 million business email

users in 2007

�81% of all email traffic is spam


Why E-Discovery?

� Why e-discovery of

social-networking

information?

�2009 marked the first instance that time spent

on social networking sites surpassed time spent

on email

�In September 2009, Facebook surpassed 300

million users and is now “nearly as large as the

U.S. population”

�MySpace has nearly 125 million active users


Why E-Discovery?

� Why e-discovery of social-networking information?

� Information from social networking sites as a litigation tool

�Investigation of lay and expert witnesses

�Deposition preparation

�Vetting prospective jurors

�For “learning information jurors may not reveal on

jury questionnaires or during voir dire, including

‘how they vote, how they spend money and if

they’ve spoken out on controversial issues.’”

�Investigation of opposing counsel, judges, etc.

�Tailoring closing arguments and trial strategy

�Example, juror’s favorite book was Seven Habits of

Highly Effective People


E-Discovery Amendments to FRCP

� Production includes “electronically stored information”

or “ESI”

�Rule 34(a): production of "any designated

documents or electronically stored information"

� Rules get parties and counsel talking about e-discovery

earlier during litigation

�Rule 26(f): parties must "as soon as practicable"

confer to discuss issues related to preservation,

disclosure, and discovery of "electronically stored

information, including the form or forms in which it

should be produced"

�Rule 16(b): judge's initial scheduling order may

include "provisions for disclosure or discovery of

electronically stored information"


E-Discovery Amendments to FRCP

�Protections

�Rule 26(b)(2)(B): no production of ESI if "not

reasonably accessible because of undue burden or

cost"

�Rule 37(f): no sanctions on a party failing to

produce ESI "lost as a result of the routine, goodfaith

operation of an electronic information

system"

�Rule 26(b)(5)(B): allows producing party to ask

for the return of inadvertently produced but

privileged ESI


E-Discovery Amendments to FRCP

�Protections

�New Federal Evidence Rule

�Rule 502. Attorney-Client Privilege and Work

Product; Limitations on Waiver

�Involves whether inadvertent disclosure of

information through discovery operates as a

“subject matter waiver” of the attorney-client

privilege or work-product doctrine

�Will talk about Rule 502 more later


E-Discovery Amendments to FRCP

�Advisory Committee Notes to Rule 502

�[Rule 502] responds to the widespread complaint that

litigation costs necessary to protect against waiver of

attorney-client privilege or work product have become

prohibitive due to the concern that any disclosure

(however innocent or minimal) will operate as a subject

matter waiver of all protected communications or

information. This concern is especially troubling in cases

involving electronic discovery. See, e.g., Hopson v. City

of Baltimore, 232 F.R.D. 228, 244 (D. Md. 2005)

(electronic discovery may encompass “millions of

documents” and to insist upon “record-by-record preproduction

privilege review, on pain of subject matter

waiver, would impose upon parties costs of production

that bear no proportionality to what is at stake in the

litigation”).


Why E-Discovery in Family Cases?

� As one court explained:

�“As it pertains to matrimonial matters, ‘electronic

discovery may be crucial in the proper cases to

determine and confirm the existence of vital

information. In others, it may be a weapon of

abuse which will further clog a system that is

already in dire need of relief.’” Schreiber v.

Schreiber, 904 N.Y.S.2d 886, 890 (N.Y. App. Div.

2010) (quoting Lee Rosenberg, Outside Counsel,

Electronic Discovery and the Matrimonial Case,

N.Y.L.J., June 15, 2005, at 4, col. 4)).


Why E-Discovery in Family Cases?

� As one commentator explained:

�“And following the lead of

criminal cases, family law

cases sometimes turn on

electronic evidence as people

communicate online, and via

cell phones, pagers and all

sorts of gadgets. But because

of small budgets, family law

practices are among the least

well-equipped to use digital

forensics.” (Krause, infra, at

63).


Why E-Discovery in Family Cases?

� The American Academy of Matrimonial Lawyers

(“AAML”) produced a press release on February 10,

2010 indicating:

If your status is separated or going through a

divorce, you might want to stay off Facebook. An

overwhelming 81% of the nation’s top divorce

attorneys say they have seen an increase in the

number of cases using social networking evidence

during the past five years, according to a recent

survey of the American Academy of Matrimonial

Lawyers (AAML). Facebook holds the distinction of

being the unrivaled leader for online divorce evidence

with 66% citing it as the primary source.

. . .


. . .

Going through a divorce always results in heightened

levels of personal scrutiny. If you publicly post any

contradictions to previously made statements and

promises, an estranged spouse will certainly be one of the

first people to notice and make use of that evidence,” said

Marlene Eskind Moses, president of the AAML. “As

everyone continues to share more and more aspects of

their lives on social networking sites, they leave

themselves open to much greater examinations of both

their public and private lives in these sensitive situations.”

Overall, 81% of AAML members cited an increase in the

use of evidence from social networking websites during

the past five years, while just 19% said there was no

change. Facebook is the primary source of this type of

evidence according to 66% of the AAML respondents,

while MySpace follows with 15%, Twitter at 5%, and other

choices listed by 14%.


Why E-Discovery in Family Cases?

� This is particularly important in South Dakota, as a

fault-divorce state

�S.D. Codified Laws § 25-4-2. Grounds for divorce

Divorces may be granted for any of the following

causes:

(1) Adultery;

(2) Extreme cruelty;

(3) Willful desertion;

(4) Willful neglect;

(5) Habitual intemperance;

(6) Conviction of felony;

(7) Irreconcilable differences.


Consequences of Failing to Comply

� Vary from case to case, jurisdiction to jurisdiction

� Failure to preserve or produce ESI is called

“spoliation”

� Spectrum of sanctions for spoliation

�Dismissal/judgment

�Adverse jury instructions

�Monetary sanctions for attorney and client

�Attorney’s fees and costs

�Practical relief

�Forensic examination, copying

�Inspection of source of ESI


Consequences of Failing to Comply

� Dependent on the “prima facie case” of an ediscovery

violation or spoliation

�Varies by jurisdiction

�Some combination of

�Duty to preserve

�Level of culpability (negligence, gross

negligence, intent, bad faith)

�Relevance of the evidence

�Showing of prejudice to the requesting party


The Elements of Spoliation

� Thus, these are the “elements” of a spoliation claim

�Duty to preserve

�Level of culpability

�Relevance of the evidence

�Showing of prejudice to

the requesting party


The Duty to Preserve

� Impractical to retain all ESI in absence of a reason to

retain it

� When is the duty to retain triggered?

�Cannot wait for someone to request the information

�And – not as simple as waiting for filing of complaint

�Duty exists when the party "has notice that evidence

is relevant to litigation”

�(Zubulake, SDNY 2003)

�Formal litigation and administrative

proceedings

�Actual and constructive notice


The Duty to Preserve

� In absence of actual notice

�Negligence standard

�When the party "should have known” evidence may

be relevant to future litigation

�Examples

�Demand letters

�Specific

�Vague or expressing an unwillingness to

litigate

�Formal complaints and internal complaints


The Duty to Preserve

� In family-law cases

�Upon filing of formal

action

�When client knows or

should reasonably know

action will be taken

�Scope of duty covers all

information reasonably

foreseeable to be

relevant to the action


Sources of ESI

� Upon actual or constructive notice, institute

a "litigation hold"

�Step 1: Gather information

�Educate yourself on technology-related issues,

including how ESI is created, altered, stored,

transferred, and destroyed

�Familiarize yourself with your client's electronic

information systems and, if relevant, the

associated player(s)


Sources of ESI

� Familiarize yourself with client's systems and players

�Who is responsible for ESI?

�Creation, transfer, storage, destruction?

�Who are the key witnesses and technology users?

�What technology is available?

�Brand and function of software and hardware

�Types of electronic communication

�Disaster recovery

�Archiving and storage


Sources of ESI

� Types of ESI frequently at issue in family cases

�Email

�Voicemail

�Instant messaging

�Documents and

spreadsheets

�Internet browsing history

�Digital images

�Video


Sources of ESI

� Types of ESI frequently at issue in family cases

�Text messaging

�Includes both text (Short Message Service or

“SMS”) and image, video, and sound content

(Multimedia Messaging Service or “MMS”)

�“But messages can remain on the sender’s and

receiver’s phones, and even if they are deleted,

communications companies store them for

anywhere from days to a few weeks. AT&T said

that, at most, it saved text messages for 72

hours while Verizon said it saved them for 5 to

10 days.” (Holson, infra)


Sources of ESI

� Types of ESI frequently at issue in family cases

�Metadata

�“Metadata is the information that many computer

applications keep about each file that is created,

and the user typically lacks access to the

metadata. Such information might include

creation and editing dates, author and user names,

comments, and historical data identifying specific

document modifications.” (Alexander, infra, at 36)

�For instance, a single email might have over a

thousand metadata properties, including dates for

sending, receiving, forwarding, replying, and

deleting as well as identities of “to,” “cc” (carbon

copy), and “bcc” (blind carbon copy) recipients.


Sources of ESI

� Places ESI can be found in family cases

�Desktop and laptop computers

�Online mail and social services (Yahoo!, Gmail,

Hotmail, Facebook, MySpace, Twitter)

�Cell phones

�External storage drives

�Digital cameras

�Loose media like DVDs and flash drives

�Home and business network servers, including

backup services

�Other devices

�MP3 players, videogame consoles, GPS devices


Sources of ESI

� Places ESI can be found in family cases

�Don’t forget that electronic data is “persistent”

�“First of all, electronic data is . . . “persisten[t],”

stating, ‘Electronically stored information is more

difficult to dispose of than paper documents. A

shredded paper document is essentially

irretrievable. Likewise, a paper document that

has been discarded and taken off the premises

for disposal as trash is generally considered to

be beyond recovery. Disposal of electronically

stored information is another matter altogether.’

. . .


Sources of ESI

. . . As another practitioner explained, ‘When a

paper document is shredded or burned, it is

essentially irretrievable. Electronic data is more

persistent. When you delete a document from a

computer hard drive, all you are really doing is

making that space on the drive available for

future use. Until another file is written over the

place where the file was, the deleted data is still

there and can be retrieved. Such a repository of

hidden, persistent data, results in an

accumulation of data of which the average user

has no direct knowledge, and over which the

user can exercise no control.’” (Alexander, infra,

at 34-35)


Sources of ESI

� Places ESI can be found in family

cases

�Don’t forget that electronic

data is “persistent”

�Data retrieval companies

can recover data even if its

been “destroyed”

�Examples from AAML

article (Ferro, infra)

�Advanced Data Recovery

�Drive Savers’ Data

Recovery


Sources of ESI

� When planning ESI investigation, think about not only

production requests, but also information that you need

to pursue your claims/defenses

� Diligence in early stages of preservation and production

will help alleviate risk of sanctions if something goes

awry


Scope of ESI

� Step 2: Define the scope of data to be preserved

�All cases: For defendants

�Look to complaint and other initial documents

�Determine allegations, issues, time frame, and

key players

�Same for those receiving a third-party subpoena

�Ask client about key factual issues, witnesses,

and documents

Use all these sources to refine your time frame

(statute of limitations?), key technology users,

and available technology sources


Scope of ESI

�All cases: For plaintiffs

Use information from investigation prior to

filing suit to determine time frame, key issues,

documents and information, and witnesses


Scope of ESI

� For all cases

�For either party, define the scope of the data you

will seek and/or produce early

�Rule 16(b) and 26(f) planning report and

conference

�Early discussion of ESI, including forms of

production

�Can be within weeks of complaint filing

�Can even be prior to responsive pleading


Scope of ESI

� For family cases

�Be conscientious of

scope, similar to how

you would in

traditional discovery

�Issues at stake

(divorce, custody,

grounds for

divorce)


Scope of ESI

� For family cases

�Cost

�“To decide whether to pursue electronic

discovery, the lawyer should do a cost-benefit

analysis. As the amount of money in dispute

in the case increases, the analysis will tilt in

favor of electronic discovery. Where the issue

cannot be quantified in money, e.g., child

custody, it is not as easily subject to a costbenefit

analysis. The lawyer should also

consider that pursuing electronic discovery

may add to the emotional overlay of the

case.” (Ferro, infra, at 11).


Scope of ESI

� For family cases

�Emotional drain

�“The American Academy of Matrimonial

Lawyers' Bounds of Advocacy suggests that

reducing the emotional level of a family dispute

is an appropriate goal for the lawyer. See Goal

1.3 (‘An attorney should refuse to assist in

vindictive conduct and should strive to lower

the emotional level of a family dispute by

treating all other participants with respect.’)

See also Goal 7.1 (‘An attorney should strive to

lower the emotional level of marital disputes by

treating counsel and the parties with respect.’)”

(Ferro, infra, at 11 n.46).


The Litigation Hold

� Step 3: Institute a litigation hold, either on your own

client or by triggering the duty to preserve for the

opponent

�Once a client has a duty to preserve information,

the lawyer has a duty to institute an effective

litigation hold


The Litigation Hold

� Your client: draft a litigation-hold letter

�Description of all documents to be preserved

�Time frame for preservation

�Categories of data

�Consequences of failure to preserve

�Requirement to certify compliance

�Prohibition on segregating or transferring data so

that it is altered

�Suspension of clean-out or janitor programs

�May need to be updated and resent as cases

progress


The Litigation Hold

� Warning: Litigation-hold letters may not be privileged

�Include on privilege log

�Don't refer to privileged matters in letter, such as

evaluation of evidence, claims, or defenses

� General cases

�Sending the letter – who receives it?

�Client's view – send to minimal number of people

�Attorney's view – send to broad range of people

�Minimum – IT directors, data custodians, key

witnesses

�Don't rely on a single contact person to

adequately preserve ESI


The Litigation Hold

� Keep a master list with:

�Names and contact information for

recipients

�Date (and even time) of receipt with

means of transmission

�When and how each recipient certified

compliance

�What data each recipient potentially

possesses


The Litigation Hold

� The opponent: send an evidence-preservation letter

�Discussed below

�Make it sufficient to trigger the duty to preserve

evidence

�Can be sent before filing a complaint

�If you foresee contention or there is a risk of

destruction, seek a protective order

� General cases: will help to plan for the Rule 16(b)

and 26(f) conference and report


Gathering Information

� Step 4: Gather information

�Purposes in gathering information

�Data your client has a duty to preserve

�Data your opponent will seek and you will have

to produce

�Informal discovery you will seek about your

opponent’s cases (pre-formal discovery)


Gathering Information

� Your client’s data

�You must ensure you client preserves all data he or

she has a duty to preserve

�This is lawyer’s obligation as much as client’s

�As one federal court recently stated:

�“Lawyers must exercise reasonable diligence to

assure themselves that a client has searched for

all relevant documents, electronic or otherwise,

and must heed and act upon warning signs.

Clients similarly must be made aware of the

consequences of passive exercise of their duties

as well as intentional misconduct.”


Gathering Information

� This area is ripe with all kinds of criminal,

malpractice, and ethical issues

� Think about applicable ethical rules

�The duty of competence (Rule 1.1)

�“Commentators generally accept that the duty of

competence applies to e-discovery issues

because . . . ‘[a] vital component of competency

is reasonable diligence in fulfilling an attorney's

duties in a case, whatever they may be.”’

(Alexander, infra, at 45)


Gathering Information

�The duty of diligence (Rules 1.3, 3.3, 3.4)

�“Similarly, ‘[a]n attorney with inadequate

technical [knowledge] cannot act with . . .

Diligence’ because, ‘[if the] lawyer is not

thoroughly familiar with a client's network and

electronic document management system,

then there may be many instances where a

lawyer does not answer a tribunal accurately,

or is tempted to guess at an answer.’”

(Alexander, infra, at 45)


Gathering Information

� “Attorneys must exercise caution when deciding

whether to disclose or use electronic data received

from the client. The attorney must inquire into how

the client obtained the information in order to

determine compliance with the law.” (Ferro, infra, at

5).


Gathering Information

� Additional legal and ethical problems: where did your

client get the information he or she has brought you?

�The Electronic Communications Protection Act

�The Stored Communications Act

�State laws

�Stalking, harassment, wiretap, torts

�Professional Conduct Rules

�1.6 Confidentiality of Information

�4.4 Respect for Rights of Third Persons

�Others (1.2, 3.4, 8.4)


Where did the Client Get This?

� The Electronic Communications Privacy Act (18 U.S.C.

§§ 2510 et seq.)

�Unlawful to intercept any wire, oral, or electronic

communication intentionally

�Or to use or disclose any wire, oral, or electronic

communication that has been intentionally

intercepted


Where did the Client Get This?

� The Electronic Communications Privacy Act (18 U.S.C.

§§ 2510 et seq.)

�Criminal penalties

�Fines and/or imprisonment

�Civil action

�Preliminary and other equitable or declaratory

relief

�Damages, including punitive damages

�Reasonable attorney’s fees and costs

�Greater of actual damages or statutory damages

of $100 per day of violation or $10,000

�Two-year statute of limitations


Where did the Client Get This?

� The Electronic Communications Privacy Act (18 U.S.C.

§§ 2510 et seq.)

�Only applies to communications “intercepted” while

being transmitted

�At least one federal court has determined that

post-transmission reading of a message is not an

interception” (Jackson Games, Inc. v. U.S. Dep’t

of Justice, 36 F.3d 457 (5th Cir. 1994)).

�Likewise, finding photographs, saved emails or

texts, or other materials stored on a spouse’s

phone or computer may not violate ECPA because

it’s not an interception (Albers, infra)


Where did the Client Get This?

� The Electronic Communications Privacy Act (18 U.S.C.

§§ 2510 et seq.)

�Also, Title II of the ECPA prohibits access of

electronic communications (like texts, email,

voicemail) by anyone who is not an authorized user

�If the client shares a computer with his or her

spouse, the client may be an authorized user

�Makes accessing those communications “fair

game” (Albers, infra)

�But just because reading a message already sent

or received does not violate the ECPA does not

mean it doesn’t violate some other law


Where did the Client Get This?

� The Electronic Communications Privacy Act (18 U.S.C. §§

2510 et seq.)

� Attorneys cannot use data obtained in violation

� Intentionally disclosure or use, or endeavoring

disclosure or use, of an intercepted communication

subjects you to the same penalties as the interceptor

�Includes anyone who knows or has reason to know

the information was intercepted

� “In other words, a lawyer whose client surreptitiously

intercepts an electronic communication in violation of

[the ECPA] must be concerned about the client’s

exposure to potential criminal and civil liability, and is

precluded from entering this evidence, no matter how

relevant, before the court.” (Ferro, infra, at 6).


Where did the Client Get This?

� The Stored Communications Act (18 U.S.C. §§ 2701

et seq.)

�Punishable offenses

�(a)(1) Intentionally accessing a facility through

which an electronic communication service is

provided, without authorization, or

�(2) Intentionally exceeding an authorization

to use the facility, and

�(b) Obtaining, altering, or preventing authorized

access to an electronic communication while it is

stored in the facility

�Internet email systems like Gmail, Yahoo!, Hotmail


Where did the Client Get This?

� State law violations

�Stalking, harassment,

wiretap laws

�Torts like invasion of

privacy or intentional

infliction of emotional

distress


� In addition to liability

under laws like the

ECPA, attorneys’

ethical guidelines may

be implicated with

questionable ESI

received from a client


Where did the Client Get This?

� Rule 1.6. Confidentiality of Information

(a) A lawyer shall not reveal information relating to

the representation of a client unless the client gives

informed consent except for disclosures that are

impliedly authorized in order to carry out the

representation or the disclosure is permitted by, and

except as stated in paragraph (b).


Where did the Client Get This?

� Rule 1.6. Confidentiality of Information

(b) A lawyer may reveal information relating to the

representation of a client to the extent the lawyer reasonably

believes necessary:

(1) to prevent the client from committing a criminal act that the

lawyer believes is likely to result in imminent death or

substantial bodily harm;

(2) to secure legal advice about the lawyer's compliance with

these Rules;

(3) to establish a claim or defense on [the lawyer’s] behalf in a

controversy between [lawyer and client], to establish a defense

to a criminal charge or civil claim against the lawyer based upon

[the client’s] conduct, or to respond to allegations in any

proceeding concerning the lawyer's representation of the client;

(4) to the extent that revelation appears to be necessary to

rectify the consequences of a client's criminal or fraudulent act in

which the lawyer's services had been used; or

(5) to comply with other law or a court order.


Where did the Client Get This?

� Cannot reveal without client’s consent, unless an

exception is met

� At least one professional ethics body has determined

that questionable information received from a client

who is party to a divorce does not meet an exception

�“However, none [of those exceptions] seem[s] to

be applicable under the facts presented, as any

criminal act that the client may have been involved

in is a past act and disclosure would not prevent a

future crime.” (Florida Ethics Opinion, infra)


Where did the Client Get This?

� Florida Ethics Opinion continues

� Attorney cannot engage in dishonest or unjust conduct or

violate ethical rules through another’s conduct

� S.D. Rule 8.4. Misconduct

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the rules of professional

conduct, knowingly assist or induce another to do so, or do so

through the acts of another;

(b) commit a criminal act that reflects adversely on the

lawyer's honesty, trustworthiness or fitness as a lawyer in other

respects;

(c) engage in conduct involving dishonesty, fraud, deceit or

misrepresentation;

(d) engage in conduct that is prejudicial to the

administration of justice;

. . .


Where did the Client Get This?

� Florida Ethics Opinion continues

�Attorney must also follow Rule 3.4

�S.D. Rule 3.4 – "A lawyer shall not: . . .

unlawfully obstruct another party's access to

evidence or unlawfully alter, destroy or conceal a

document or other material having potential

evidentiary value . . . ."

�And don’t forget the comment

�Comment – Rule applies to "evidentiary

material generally, including computerized

information"


Where did the Client Get This?

� Florida Ethics Opinion advises:

� Discuss situation with client

� If possible criminal act, have client get advice from

criminal lawyer (if you don’t practice criminal law)

� Tell the client you’re subject to disqualification with the

court for reviewing materials improperly obtained (see,

e.g., Maldonado v. New Jersey, Admin. Office of the

Courts – Probation Div., 225 F.R.D. 120 (D.N.J. 2004))

� Advise client of possible sanction or civil or criminal

penalties against him or her

� Inform client that materials cannot be retained,

reviewed, or used without disclosure

� If client refuses consent, look at withdrawal rules


Gathering Information

� A related issue: inadvertent disclosure of information

�Received from client

�Received from opposing counsel or opposing party

� More akin to seeking ESI from your opponent, but

also applies to inadvertent disclosures you might

make


Gathering Information

� Rule 4.4. Respect for Rights of Third Persons

. . .

(b) A lawyer who receives a document relating to the

representation of the lawyer's client and knows or

reasonably should know that the document was

inadvertently sent shall promptly notify the sender,

and or sender's lawyer if sender is represented.


Gathering Information

� AAML also counsels that

matrimonial lawyers should

refrain from reviewing the

materials and return them to

the sender. (AAML Bounds of

Advocacy 7.6).


Gathering Information

� General cases – federal rules

�Rule 26(b)(5)(B): allows producing party to ask

for the return of inadvertently produced but

privileged ESI

�Also, Evidence Rule 502

�Involves whether inadvertent disclosure of

information through discovery operates as a

“subject matter waiver” of the attorney-client

privilege or work-product doctrine


Gathering Information

� New Federal Evidence Rule

�Rule 502. Attorney-Client Privilege and Work

Product; Limitations on Waiver

�(a) Disclosure made in a Federal proceeding or

to a Federal office or agency; scope of a waiver.

�(b) Inadvertent disclosure.

�(c) Disclosure made in a State proceeding.

�(d) Controlling effect of a court order.

�(e) Controlling effect of a party agreement.

�(f) Controlling effect of this rule.

�(g) Definitions.


Gathering Information

� Three-part test to determine whether inadvertent

disclosure is a waiver of the privilege

� No waiver if

�(1) The disclosure is inadvertent;

�(2) The party claiming the privilege took

reasonable steps to prevent disclosure; and,

�(3) That same party took reasonable steps to

rectify the error, including following Federal Rule of

Civil Procedure 26(b)(5)(B)


Gathering Information

� Advisory Committee Note sets out a five-part factors

test

�(1) The reasonableness of the precautions taken to

prevent disclosure,

�(2) The time taken to rectify the mistake,

�(3) The scope of discovery,

�(4) The extent of the disclosure, and

�(5) The overriding issue of fairness


Gathering Information

� Comment to AAML’s Bounds of Advocacy 7.6 lays out

a similar five-part test for matrimonial lawyers

�(1) The reasonableness of the precautions taken to

prevent inadvertent disclosure in view of the

extent of the document production

�(2) The number of inadvertent disclosures

�(3) The extent of the disclosure

�(4) Any delay and measures taken to rectify the

disclosures

�(5) Whether the overriding interest of justice

would be served by relieving the party of its error

(Albers, infra, at 24-12)


Informal Social Networking Discovery

� Major ethical issues related to

informal discovery from social

networking sites

�Example: can you ask a

third person to friend the

target (witness or part) or

create a false person/entity

to friend the target?

�Almost certainly not

�Most commentators

agree


Informal Social Networking Discovery

� Example: can you ask a third person to friend the

target or create a false person/entity to friend the

target?

�One bar association’s ethics committee stated,

�“Deception is deception, regardless of the

victim’s wariness in her interactions on the

internet and susceptibility to being deceived.

The fact that access to the pages may readily be

obtained by others who either are or are not

deceiving the witness, and that the witness is

perhaps insufficiently wary of deceit by unknown

internet users, does not mean that deception at

the direction of the inquirer is ethical.”


Gathering Information

� Overall, just don’t forget that

you may have to produce

anything that you find in your

investigation

�From client

�Your own investigation (like

social networking)


Producing/Withholding ESI

� General Cases

�Accessibility Issues

�Rule 26(b)(2)(B) - "not reasonably accessible

because of undue burden or cost"

�Cost-benefit test

�Cumulative/duplicative production

�Alternative, less-burdensome sources

�Failure to use an opportunity earlier

�Burden and expense, parties' resources

�Case's needs, issues' importance, importance of

discovery sought to actual issues

�Amount in controversy


Producing/Withholding ESI

� General Cases

�Safe Harbor

�Rule 37 sanctions plus adverse jury instructions to

motivate production

�Rule 37(f) also allows a safe harbor for

nonproduction

�Lost or destroyed

�Routine, good-faith operations of electronic

information system

�Cannot claim ignorance of how data is stored or

maintained

�Highlights importance of solid litigation hold


Producing/Withholding ESI

� General Cases

�Inadvertent production issues (already discussed)

�Rule 26(b)(5)(B)

�Evidence Rule 502


Producing/Withholding ESI

Family-law cases

�The attorney should not

condone, assist, or encourage

clients to transfer, hide,

dissipate, or move assets to

improperly defeat a spouse’s

claim (AAML)

�This includes data relating

to assets (AAML, Bounds of

Advocacy 5.1, comment)

�Violation of ethical

rules, spoliation

sanctions


Seeking ESI from Your Opponent

� Preservation-of-evidence letter

�Send a letter to the opposing party

and/or counsel

�You plan to seek ESI in discovery

�What information you will seek and in what

format

�What sources you believe will have information

�If you foresee contention or there is a risk of

destruction, seek a protective order

�General cases: will help to plan for the Rule 16(b)

and 26(f) conference and report


Seeking ESI from Your Opponent

� Requests should be fairly specific

�Target particular ESI

�Not broad boilerplate information

�If objected to and you seek to compel the

information, you must be able to show what you’re

looking for

�Not a “fishing expedition”

�Particularly important to be specific when seeking

information like metadata


Seeking ESI from Your Opponent

� Courts in family-law cases have adopted the “fishing

expedition” theme

�Schreiber v Schreiber, 904 N.Y.S.2d 886 (N.Y. App.

Div. 2010)

�Wife wanted forensic examination of husband’s

computer because husband allegedly concealed

income and assets

�Husband said the request was just a fishing

expedition

�Husband submitted affidavit that he had already

produced everything there was to produced


Seeking ESI from Your Opponent

�Schreiber v Schreiber, 904 N.Y.S.2d 886 (N.Y. App.

Div. 2010)

�The court determined, as its role:

�“Nevertheless, the court is bound to ‘oversee

the discovery process and to insure that

undue prejudice and delay do not occur as

the result of additional and/or potentially

open-ended discovery, including unwarranted

fishing expeditions’” (citations omitted)

�The court determined wife was not entitled to

unrestricted turnover

�Her request didn’t target particular information


Formal Social-Networking Discovery

� Courts are willing to require users to produce social

networking information to narrowly tailored discovery

requests

� Courts are reluctant to require service providers to

provide broad, unrestricted access to social

networking user information

�Okay with narrowly tailored requests

� Most service providers’ privacy policies permit

disclosure in response to subpoenas or court orders

� Courts are not receptive to user privacy or privilege

arguments with respect to information posted on

social networking sites, even if the audience is limited


Formal Social-Networking Discovery

� Good practice with social networking information

� Propound interrogatories seeking user profiles and

accounts on social networking providers

� Include document requests for information on social

networking sites, including video and photos

� Consider a narrowly tailored subpoena to service

providers once basic information is received

User profile names

�Home and email addresses

�Time period of activity

� Inquire about social networking usage in depositions

� Address social networking issues during pretrial

conferences and protective order proceedings


Seeking ESI from Your Opponent

� Protecting and working with produced ESI

�Involve an expert or other professional, if possible

�Make image copies (a working copy)

�Write protect and virus check

�Preventing additions, alterations, and deletions

Use up-to-date virus software

�Do not clean or repair any viruses detected

�Document your process / chain of custody

�Proof that ESI has not changed since production

�Complete copy, reliable methods, proper security


Electronic Evidentiary Issues

� Ferro article in Bibliography has a nice summary in

family cases

�Also several nice secondary sources on evidentiary

issues in e-discovery

�8 Charles Alan Wright, Arthur R. Miller, &

Richard L. Marcus, Federal Practice & Procedure

§ 2218 (3d. ed. 2010)

�The Sedona Conference, Commentary on ESI

Evidence & Admissibility (2008), available at

http:// www.thesedonaconference.org

�Steven Goode, The Admissibility of Electronic

Evidence, 29 Rev. Litig. 1 (2009)


Electronic Evidentiary Issues

� Generally

�401 relevance

�Proper authentication

�Hearsay and exceptions

�Original writing rules (1001-1008)

�403 balancing


In Any Event . . .

� Institute solid litigation holds and monitor client’s

evidence

�You are the first line of defense against sanctions

� Keep formal discovery requests tailored

�No fishing expeditions

� If discovery becomes adversarial, consider a

discovery referee

�Courts have been willing to appoint them in all

sorts of cases, including family law (Schreiber)


�Questions?


Bibliography

� Virginia A. Albers, Egads! Electronic Discovery: Am I Breaking the Law?, presented at

the AICPA/AAML National Conference on Divorce, May 8-9, 2008, available at

http://conferences.aicpa.org/div08/

� Rachel K. Alexander, E-Discovery Practice, Theory, and Precedent: Finding the Right

Pond, Lure, and Lines without Going on a Fishing Expedition, 56 S.D. L. REV. 25 (2011)

� Am. Acad. of Matrim. Law., Big Surge in Social Networking Evidence Says Survey of

Nation's Top Divorce Lawyers, Feb. 10, 2010, available at http://www.aaml.org/aboutthe-academy/press/press-releases/e-discovery/big-surge-social-networking-evidencesays-survey-

� Gaetano Ferro, Marcus Lawson, & Sarah Murray, Electronically Stored Information:

What Matrimonial Lawyers and Computer Forensics Need to Know, 23 J. Am. Acad.

Matrim. Law. 1 (2010)

� William S. Friedlander, Electronic Evidence in Everyday Case: All in the Family

Computer, 41 Trial 36 (Oct. 2005)

� Laura Holson, Text Messages: Digital Lipstick on the Collar, N.Y. Times, Dec. 8, 2009,

available at http://www.nytimes.com/2009/12/09/us/09text.html

� Jason Krause, The Human Equation: Family Law Software Saves Time, but too Much

Technology Could Hurt a Practice, 91 ABA J. 63 (Sept. 2005)

� Prof’l Ethics of the Fla. Bar, Op. 07-1 (Sept. 2007), available at

http://pub.bna.com/fl/200701.htm

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