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.


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