Divorce in the Digital Era

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This is a copy of my presentation at the 2013 VT Family Law Conference. This lecture discusses the growing importance of electronic evidence in divorce litigation, and provides suggestions on how to locate, recover, and preserve emails, social media posts, pictures, and computer files. It also covers the legal risks that attorneys and their clients face if they are too aggressive in pursuing electronic evidence.

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Divorce in the Digital Era

  1. 1. Divorce in the Digital EraWhat Every Divorce Lawyer Needs to Know AboutElectronic Discovery, Internet Investigations, and Computer Forensics Frederick S. Lane Vermont Family Law Conference 15 February 2013www.FrederickLane.com www.ComputerForensicsDigest.com
  2. 2. General Background • Attorney, Educational Consultant & Lecturer • Author of 6 Books • Computer Forensics Expert • 10 Years -- Burlington (VT) School Board • Technology & Privacy Specialist • Student Safety Advocatewww.FrederickLane.com www.ComputerForensicsDigest.com
  3. 3. Previous Bookswww.FrederickLane.com www.ComputerForensicsDigest.com
  4. 4. Computer Background• Thirty years of personal computer experience• More than twenty years lecturing on technology and the law• Fourteen years of computer forensics experience in a variety of cases• 40 hours of instruction in X-Ways Forensics and computer file systems www.FrederickLane.com www.ComputerForensicsDigest.com
  5. 5. Seminar Outline• The Pre-Divorce Digital Checklist• Identifying and Finding Relevant Information• Digital Investigation by Your Client• Digital Investigation by You and Your Agents• Electronic Discovery and Subpoenas• Computer Forensics in Divorce Cases• Issues of Digital Behavior During and Post-Divorcewww.FrederickLane.com www.ComputerForensicsDigest.com
  6. 6. The Pre-Divorce Digital Checklist • Inventory of All Known Electronic Devices • List of All Known Electronic Accounts • Inventory of Shared Data (or Data That Should Be Shared) • Planning to Live a Separate Electronic Life • Those Who Live in Gorilla Glass Houses … www.FrederickLane.com www.ComputerForensicsDigest.com
  7. 7. Identifying/Finding Relevant Info.• Categories of Information – Emotional Betrayal and Infidelity – Hidden or Dissipated Assets – Addictions – Criminal Behavior – Harm or Risks to Children• Leading Digital Sources – Social Media, Texts, Emails, Files, Webwww.FrederickLane.com www.ComputerForensicsDigest.com
  8. 8. Identifying/Finding Relevant Info.• Information in the Domicile – Desktops, Laptops, Gaming Consoles – External and Removable Storage• Information on the Go – Smartphones, Tablets, eReaders• Information in the Cloud – Social media, Web email, online financial accounts, online data storage, etc.www.FrederickLane.com www.ComputerForensicsDigest.com
  9. 9. Digital Investigation by Your Client • A Brief Overview of Privacy in Marriage • Factors to Consider Before Snooping: – Who Owns the Device? – Where Is the Device Located? – Shared Account? – Password-Protected? www.FrederickLane.com www.ComputerForensicsDigest.com
  10. 10. Digital Investigation by Your Client • Legal Risks of Client Snooping: – Google Searches – Listening to or Taping Phone Calls – Reading Emails on a Computer – Intercepting Emails – Unauthorized Access to Devices or Accounts – Location-Tracking using Apps or GPS Devices www.FrederickLane.com www.ComputerForensicsDigest.com
  11. 11. Digital Investigation by You and Your Agents• Attorneys Are Not Witnesses• The Perils of Digital Investigations – Rule 4.1 – Truthfulness in Statements to Others – Rule 4.2 – Communication with Person Represented by Counsel – Rule 5.3 – Responsibility Regarding Non- Lawyer Assistant – Rule 8.4 – Misconduct• See Previous Slide (Similar Legal Risks)www.FrederickLane.com www.ComputerForensicsDigest.com
  12. 12. Electronic Discovery and Subpoenas • VRCP 16.2 – Scheduling orders may provide for e-discovery • VRCP 26(b)(1) – No duty to provide discovery if inaccessible because of undue burden or cost • VRCP 33(c) – it is sufficient to specify business records from which information can be derived • VRCP 34 – Covering production and form of electronic data www.FrederickLane.com www.ComputerForensicsDigest.com
  13. 13. Electronic Discovery and Subpoenas • VRCP 37 – No sanction for destruction of data by “routine, good- faith” operation of device • VRCP 45 – Rules governing subpoena of electronic data • Compelling production of passwords • Obtaining electronic data from online service providers www.FrederickLane.com www.ComputerForensicsDigest.com
  14. 14. Digital Forensics in Divorce Cases• Defining Digital Forensics – Mobile, Computer, Network, Cloud• The Great “Delete” Myth• Relevant Data, Installed Programs and Internet History• Discovery Issues – Ownership, Invasion of Privacy, Burden• Time Is of the Essencewww.FrederickLane.com www.ComputerForensicsDigest.com
  15. 15. Digital Behavior During and Post-Divorce• Your Client’s Posts Can and Will Be Used in a Court of Law• Electronic Contact with Minor Children• Cyberstalking and Cyberharrassment• Digital Child Custody and Electronic Co-Parentingwww.FrederickLane.com www.ComputerForensicsDigest.com
  16. 16. Contact Information• Please Visit My Web Sites: – www.ComputerForensicsDigest.com – www.FrederickLane.com – www.CybertrapsfortheYoung.com• Send Me an Email: – FSLane3@gmail.com• Call Me: – 802-318-4604 www.FrederickLane.com www.ComputerForensicsDigest.com
  17. 17. Divorce in the Digital EraWhat Every Divorce Lawyer Needs to Know AboutElectronic Discovery, Internet Investigations, and Computer Forensics Frederick S. Lane Vermont Family Law Conference 15 February 2013www.FrederickLane.com www.ComputerForensicsDigest.com

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