Like many marriages that end in divorce in Texas, the dissolution of the union between Sarah and Mike Brown (names have been changed to protect the innocent) was not done under the most cordial of circumstances. The Browns were married for seventeen years, owned an enviable home outside of Dallas, Texas, and were the top young IRS Attorney in Dallas Tx proud parents of three school-aged children. Mike had been growing noticeably more distant over the past couple of years and the ideal life they presented in public was a much different reality behind closed doors. Sarah had a strong suspicion that her husband was having an affair and, being adept at searching her way through the newest pieces of technology, decided to check out Mike’s personal computer when he was out of town on business. What Sarah Brown found on her husband’s computer hard drive was enough to make her call a divorce lawyer the next morning, and begin an emotional trial that tested the boundaries of the always-evolving legal world of electronic discovery.
Damaging discovery that an attorney can use against an opposing spouse party in a divorce action or child custody proceeding is no longer limited to a trace of lipstick left on a white-shirt collar or a mysterious credit card bill found during a quick rummage through a briefcase. Today, sophisticated Texas divorce lawyers are more likely to present evidence that comes from cell phone records, Facebook comments, MySpace pages, deleted e-mails, and visits to web sites that were not quite as hidden as planned.
If divorce clients make the mistake of engaging in behavior that is not conducive to a happy marriage, do not think that they are safe from exposure even while driving in their cars. Texas divorce attorneys will tell you that even E-Z Pass toll records can be subpoenaed to prove that they were heading somewhere they had no business being. In addition, a suspicious spouse can attach a Global Positioning System (GPS) device to the family car and later use these recorded routes against your client in court. These days, the notion that every moment of one’s life is for the public eye does not just apply to celebrities and public figures. However, the attorney needs to be sure that the evidence collected is done in a way that does not violate Federal or State privacy laws. What is the point of collecting every condemning email or text message if a Federal or Texas State judge decides the documents are inadmissible in court? Does it matter if the proof of an affair was found on a work computer, a personal laptop, PDA, or a family computer that also is used by the teenage residents for history homework?
There is the dangerous misconception that activities, which take place online, are somehow harmless or at least not as consequential as the same decisions made in real-life. Flirting with a woman on the computer is not the same as chatting with her in a bar, right? With that said, you should be aware that social networking sites are taking steps to make sure that their content is accessible in legal situations. Have you read the fine print before typing a comment to your “friend” on MySpace? This web site and others like it state that, if legal standards are met, user information can be passed on to law enforcement agencies and legal teams involved in divorces.
Family law attorneys who are fighting a child custody battle also scour the internet looking for possible electronic discovery. All that a lawyer needs to find is a few photos of a minor child smoking pot or drinking alcohol posted on a web site and charges of being an unfit parent can be substantiated. Let the words of Dallas family attorney Mary Jo McCurley serve as a warning, “For a lawyer, it’s almost like a ‘ha’ moment. It’s kind of fun when you see something that you can use as evidence [against] the opposing party.” Online activities are just as serious as those in the “real world” and, to the absolute delight of opposing legal counsel, electronic behavior is recorded and never, ever goes away.
Lawmakers and courts at all levels of state and federal government have been scrambling to keep up with the ever-increasing series of questions that new technology brings. What evidence can and should be admissible in court? In what form or predicate should the attorney present the evidence? When is the line protecting the right to privacy crossed? Through amendments to the Federal Rules of Civil Procedure on December 1, 2006, Congress enacted the primary guidelines used to answer such questions and others on the federal level. Through Rule 34(a), Congress added electronically stored information (ESI) as a category of discoverable information. To ensure that this amendment maintained its relevance as new technologies are invented, ESI was defined to be “writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained.” By purposefully using the language, “in any medium,” in the future, the federal courts can require data from technology not even invented yet. If you have had any difficulty keeping up with the new electronic devices that have come on the market in just the last five years (how many versions of the iPhone and Blackberry are there now?), you can understand why the federal lawmakers left such a wide open door.