Facebook, Divorce & E-Discovery

Electronically stored information is the data that can be recovered from devices, websites, email accounts, servers and more that can tell a story about where people were, what they were doing, and what they may have been saying or thinking.   On the news and on television commercials, we are bombarded with information about how a missing person’s cell phone gave clues to their whereabouts or to the wrongdoer.  You can even track your stolen iPhone with a certain app – it maps where the iPhone has gone and where it is located.  It is amazing.

In the world of divorce, where distrust and suspicion are frequent characteristics, electronic information often fleshes out who may be untruthful or unfaithful.   Facebook is now a frequent “witness”  in divorce cases, even blamed for breaking up marriages.  Individuals often use Facebook to share their feelings, whereabouts, and more…including pictures of a lover and potentially defamatory rants about the other party.  Lawyers often find it to be a treasure trove of items that may help their clients’ cases or that may push the other-party to reconsider the position on settlement.

The electronic information on Facebook, as well as other sources such as texts, emails, ATM transactions, etc. is a burgeoning area of evidence.   In litigation, the rules of evidence and the laws of divorce are both state specific items.  As a result, there is no national standard in how to handle these issues which often involve questions regarding when a party is required to preserve such electronically stored information and who will be responsible for paying for its retrieval.   Depending upon the state in which the divorce is pending, litigation may involve the use of an e-Discovery expert, Special Master, Arbitrator or Mediator (e-Neutral) to resolve these issues, some of which may involve sanctions if the spouse at issue delays, destroys, or fails to preserve relevant evidence (including the incriminating or damning evidence).

Attorneys, including Family Lawyers, should know who in their communities has computer forensic experience, as well as ADR professionals who are well-versed in e-Discovery matters, such as One Mediation’s neutrals who have e-Discovery experience at attorneys and have completed e-Discovery training.

Fire Department Facing the Heat of the EEOC

A municipal fire department is facing an in-depth investigation by the EEOC following a flurry of complaints regarding discrimination in the ranks.  As individuals have been interviewed, news reports indicate that the allegations of discrimination certainly involve sex discrimination as a bias against the “three F’s” – meaning individuals who were fat, female or homosexual (an unfortunate slang term was used instead) – by top brass.

How can employers nip such problems in the bud and protect and promote a merit-based workforce?

  • Ensure that employees receive ongoing training regarding workplace policies and laws are a means to reinforce EEO policies and to give them more than lip service.
  • Take deliberate steps to train manager and leaders within the organization to utilize relevant and objective measures in how they conduct business, espouse the value of a diversity of ideas and experiences, and understand the policies that are in place and their relationship to applicable laws.  Here, where individual liability may exist, buy-in to the concept of fair workplace practices shouldn’t be that hard to obtain.
  • Investigate, follow-up, review, etc. every concern that is raised.  When the “little stuff” is treated seriously, the “big stuff” is unlikely to come as any surprise (if at all).
  • Where top leaders in a division or a department are involved, bring in an external workplace investigator, such as those at One Mediation, to bring a trained and unbiased set of eyes to the situation.  If there is a problem, it can be solved.  If there is not a problem, the situation can be explained.
  • Train HR professionals, legal counsel, and risk managers to conduct effective follow-up and investigations of employee concerns, whether anonymous or otherwise, through training that is offered from a variety of vendors, including One Mediation (next course offered June 15, 2012).

Three Reasons Divorce Mediation Works for Some Couples

A short article on why some couples find mediation to be a desirable process to sort through the issues of divorce.

The Importance of “Clear and Certain” Language

 Recently, the Georgia Supreme Court took a discretionary appeal of the trial court’s order finding the wife in criminal and civil contempt of the the court’s divorce decree and related order, awarding the husband over $80,000 in damages and attorneys’ fees.  The Georgia Supreme Court reversed. Scherer v. Testino, S12A0222 (05/07/12).

 In this case, the divorce decree awarded a medical supply business to the husband and established a transitional plan to detangle the wife from the operation and ownership of it. Additional court orders were required to facilitate these transfers, to include establishing a calculable date upon which the wife could close a specific business bank account.

The wife closed the account months after this deadline.  The husband filed a civil and criminal contempt motion. The trial court granted the motion, in part, because it found that the ordered closing date was unrealistic and that the wife had waived the clause by closing the account months after the specified date.

Imagine the wife’s surprise!  She appealed.

The Georgia Supreme Court reversed the contempt order finding that the trial court exceeded its authority in modifying, rather then interpreting the decree or clarifying its order. Further, it was improper to find the wife in contempt of a court order when, in essence, she had no notice that her conduct was improper. The order’s language contained no clear and certain language that wife’s conduct was violative of the order (indeed, it appears just the opposite).

Aside from the legal rules affirmed in this decision, parties are well served by agreements that account for foreseeable complications so that contingencies can be addressed at the time of the event, not later. In drafting settlement agreements, consider the utility of a voluntary or a pre-litigation ADR clause that provides parties with tools to solve anticipated or actual compliance issues without need for litigation.

Ms. Keaton mediates domestic relations matters, including modifications, at One Mediation. Contact her with comments about this article or to schedule mediation at jkeaton@onemediation.com. 

How Many EEOC Charges Were Filed In Your State in 2011?

The Equal Employment Opportunity Commission, which falls under the U.S. Department of Labor, has recently published data that reflects state/territory data regarding Charges by category.  Make your guess, did California, Florida or Texas have the most Charges last year?

The data can be found here…or downloaded here.

 

Get Information Fast: Speed-Divorcing (June 19th or September 18th, Atlanta)

Speed-Divorcing is a two-part presentation by a variety of divorce industry professionals who quickly provide attendees with information they need regarding the divorce process, their needs during and after divorce, and pitfalls to avoid.

The first portion of the presentation is a panel discussion from the divorce experts regarding the process and wise steps to take before, during and after the divorce process.  The second portion of the presentation involves a round-robin whereby attendees meet, one on one, with each panelist for a short meeting.  Due to the round-robin, this event has a limited number of seats that fosters a small group and confidential setting.  During the one-on-one meetings, specific concerns, questions, and information can be exchanged.  For the panelists, getting good information into your hands in a comfortable setting is paramount.

To register for the June 19th event in Buckhead, register through  http://www.eventbrite.com/event/3567322959

TimePlease arrive by 5:30 pm.

Place:  70 Lenox Pointe, NE, Atlanta, GA 30324 (Fryer Law Building)

Coupon code: SMART – $10 off registration fee.  

Other infoEarly registration – $49.00 thru May 23rd; Regular registration – $69.00 thru May 30th.

MPR’s “Romance in the workplace can be a minefield”

As a follow-up to the previous post on workplace investigations and Best Buy, more information has become available with plenty of “lessons learned” for human resources professionals, employers, attorneys, and more.

http://minnesota.publicradio.org/display/web/2012/05/15/workplace-relationship/

Best Buy’s Workplace Investigation: Quick, Effective, Newsworthy

Best Buy recently received and published highlights from an investigation in to several allegations of misconduct by higher level executives and others.  The lessons from this investigation are still to be culled, but the bottom line is that the company responded swiftly to unsavory allegations, a response that has left them in control of fixing the problem(s), responding credibly to employees, customers, and shareholders with lemonade rather than lemons, and demonstrating a commitment to values-based leadership.

Is your company prepared to respond promptly, credibly, and with integrity to allegations of misconduct?  Ensure that your Risk Management team is prepared.  One Mediation can help through its workplace investigation training modules, professional investigators, and training offerings.

 

June 2012 Divorce Resources (Atlanta)

Below is a listing of upcoming Divorce Programs for individuals contemplating separation and divorce, as well as their options:

June 1, 2012 – Real Estate Conundrums in Divorce Mediations – 9 a.m. – 12:15 p.m. (Atlanta/$70)             drrickv@divorcecenterofatlanta.com

June 6, 2012 – Divorce Mediation Orientation – 12-1:30 p.m. (One Mediation/$35 at door)

June 15-17 – Women’s Divorce Survival Weekend – www.visionsanew.org

June 19th  – Speed Divorcing – 5:30 – 9 p.m. ($49+/Buckhead) http://www.speeddivorcing.com

June 23, 2012 – Seminars for Divorcing Couples – ($29.95; http://www.divorceinnovations.com)

It Cost AT&T over $5 Million…Why Workplace Investigations Must Be (and actual be) Part of an Employer’s EEO/Harassment Policy

Ouch!  AT&T recently lost an employment lawsuit that resulted in $5 Million in punitive damages.

In that case, AT&T was accused of failing to provide religious accommodations and retaliating against a Muslim employee.  In slapping AT&T with these damages, the court demonstrated in very clear terms that it was not impressed with employment policies that merely pay lip-service to the principles and rules they dictate.  At issue here, AT&T had satisfactory policies  regarding discrimination, harassment, retaliation and accommodations, but it did not implement them satisfactorily.  Specifically, the lack of a meaningful workplace investigation into this employee’s complaints about religious discrimination was inexcusable.

Employers and Human Resources professionals should be mindful of the needs for good policies in their workplaces.  However, they should be prepared to implement them with a process or procedure that includes appropriate follow-up on workplace complaints of harassment, discrimination, and retaliation and already have a ready-list of external sources, such as One Mediation, for more substantive workplace investigations and mediations, in order to resolve matters before further damage to morale, compliance, or the bottom-line occurs.