The Impact of Electronic Evidence in Divorce Proceedings

As published in the September 15, 2016 issue of Daily Business Review’s Family Law section.

It’s been virtually impossible to ignore the latest sexting allegations concerning Anthony Weiner and his estranged wife, Huma Abedin. This time, the couple has officially separated and appear headed toward divorce. Because the couple’s nearly 5-year-old son was in the background of one of the photos, child custody could become contentious, potentially including child welfare agencies as well.

To be sure, this is an extreme case that attracts greater media attention than others; however, there are lessons to be learned for all family law attorneys…and everyone else, as well. Primarily, the proliferation of technology and resultant emergence of electronic evidence…and how they are impacting a growing number of divorce proceedings.

The rapid growth of electronic information most definitely has created many new opportunities for family litigators to use in proving facts at trial. Email and other forms of digital communication, including social media, can be particularly revealing, because people often text or post intimate details they wouldn’t otherwise share, because it seems anonymous.

It’s not. As much as we instruct children to be cautious when making any electronic post because of potential consequences, the same advice applies to every couple. Consider that anything said or done online today could surface in court as evidence at some point. In fact, a growing number of litigators count on the fact that available electronic evidence will significantly expand their scope of discovery.

That’s because electronic files can remain viable and online indefinitely. As we know, deleting online items won’t keep them from being discovered. Someone can always find and retrieve them.

However, that doesn’t mean electronically stored information, or ESI, can’t be lost, destroyed, or altered. This has given rise to an increase in the number of motions filed against spoliation of electronic evidence – items destroyed, lost or altered, whether intentionally, or by accident.

The American Academy of Matrimonial Lawyers reported 81-percent of its members noticed a rise in social networking information being used in divorce proceedings. We think it will become de rigueur for attorneys to automatically file motions against spoliation of evidence to prevent potentially damaging electronic images, videos or texts involving the opposite party from being destroyed upon the filing of each new family law case.

However, there’s also a downside for attorneys seeking to acquire this preponderance of electronic evidence. Cost. Very often, the expenses involved in securing and researching ESI can far exceed the cost of creating and storing it.

Why is that? Well, attorneys first need to hire experts to retrieve and store the files. There are expenses involved in retaining the experts and for maintaining digital or cloud storage of evidence they find. Add to that the attorney’s time spent weeding through large batches of ESI to find material that relates to the case being prepared.

Then there is the threat of sanctions for spoliation, which may lead to inadmissible items being preserved simply because the party is hesitant to destroy potential evidence. Over-arching electronic evidence requests might be used by one party to drive up costs in order to obtain a more favorable settlement from the other side. And, motions for sanctions can create distrust between the parties and derail opportunities for a more amicable settlement.

All of which can drive up the cost of the proceedings. Despite the cost, Willoughby et al documented an increase in motions for sanctions involving electronic discovery precisely because social media content can be used to contradict claims – especially in child custody fights.

Spoliation is a criminal action under U.S. federal law and in most states. Here in Florida, courts consistently have upheld sanctions as appropriate in cases where spoliation has taken place. In divorce cases, spoliation can entitle the non-offending spouse to evidentiary presumptions…even separate causes of action.

Bottom line: spoliation of evidence – electronic or otherwise – is not to be trifled with.

Evidence found on social networking sites can very often influence a range of family and marital decisions, including alimony and child support, and timesharing rights with children. For example, in Dexter v. Dexter, Ohio’s Court of Appeals for the 11th Appellate District considered a mother’s social media post indicating that she planned to use drugs in the future to deny custody of her child. Similarly, parents who post about expensive new cars or vacations may find their requests for reduced alimony payment, for instance, denied.

No doubt, electronic evidence will continue to remain a key focus in marital and family law matters.

Peter L. Gladstone and Jeffrey A. Weissman are principals and shareholders of Gladstone, Weissman, Hirschberg & Schneider in Boca Raton. Both practicing attorneys are Board Certified in Marital and Family Law by the Florida Bar.

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