Matrimonial E-Discovery Orders

by Jonathan Bick and Jonathan E. Von Kohorn

Jonathan Bick  is of counsel to WolfBlock Brach Eichler of Roseland and is an adjunct professor of Internet law at Pace Law School and Rutgers Law School. He is also the author of 101 Things You Need To Know About Internet Law [Random House 2000]. Jonathan E. Von Kohorn is an associate with Halloran & Sage, LLP

Service upon one's adversary of a notice to produce documents is a most efficient procedure to obtain most of the relevant evidence in a matrimonial matter. Since the advent of the Internet this procedure must be expanded to e-discovery. Just as in the case of traditional discovery procedures, e-discovery can also be relatively inexpensive.

Most courts hold that rules of discovery are to be liberally construed, allowing the court to compel a party to produce all relevant, non-privileged information that may lead to the discovery of relevant evidence. Courts have continued to apply this legal tenet to e-discovery.

Either party to a matrimonial dispute may obtain access to evidence in anticipation of litigation or for through a showing that the evidence sought has substantial value in the preparation of a case and that the party requesting the evidence is unable without undue hardship to obtain the substantial equivalent of the materials by other means. This standard is equally applicable to traditional and electronic discovery.

As an increasing number of courts confront e-discovery issues in matrimonial litigation, reported decisions are forming a modern universe of case law against which the family law practitioner can look to for persuasive authority.  While discovery orders in matrimonial actions are particularly fact driven, a basic familiarity with both e-discovery issues and reported decisions can provide a context for both drafting proposed orders and advising on discovery stipulations.

A recent and comprehensive matrimonial e-discovery financial order is found in Etzion v. Etzion, 7 Misc. 3d 940, 2005 N.Y. Slip Op. 25115 (N.Y. Sup., Feb. 17, 2005) (NO. 202179/02), 2005 WL 689468.  In Etzion, the plaintiff’s proposed discovery order requested the impounding, cloning and inspection of all of the defendant’s computers or “digital data”.  She also sought to have the applicable Sheriff’s department authorized and immunized to obtain physical access to the equipment, an order preventing the destruction of digital data, and counsel and forensic expert fees in connection with the entire matter.  The show cause order was initially denied, but the Appellate Division granted the order in part and the decision cited above followed thereafter.

Etzion implicates the most common e-discovery issues that can arise in matrimonial litigation.  First there is the issue of actual physical access to the computers and digital data.  The defendant was ordered to disclose all locations to the plaintiff.  The second issue is the scope of analysis that can be applied to the data.  The wife was allowed to “clone” the digital data devices (i.e. replicating as best as possible the exact contents of each device onto a similar device).

The husband’s legal, business, security and privacy interests were protected through the use of selected experts working on behalf of both the husband and wife whose work was moderated by an attorney referee who was appointed by the court to supervise discovery.  The attorney referee was authorized to make final decisions concerning what data could be printed from the cloned devices.  Only admissible data related to financial and business matters was to be authorized for disclosure.  Privileged and personal e-mails were considered off limits.  The limitation on personal e-mails would have most likely not been ordered had the wife been seeking personal data to document adultery or some other relevant factor to the action.

A recent example of a non-financial e-discovery matrimonial order is Ranta v. Ranta, 2004 WL 504588, No. FST-FA-98-0195304-S (Conn. Super, Feb. 25, 2004).  The defendant claimed that evidence of the plaintiff’s extramarital relationship resided in her laptop computer. See Scheffey, T., Lockdown Ordered for Laptop, Connecticut Law Tribune, ALM Media, Inc., pg 1 (Mar. 15, 2004).  Any actual evidence of the allegation could have been relevant to the equitable division of property at trial.  In a terse decision, the court ordered the plaintiff to immediately stop using the laptop computer and to deposit it with the court clerk for use as an exhibit.  The defendant was also ordered to purchase a replacement laptop for the plaintiff, however the parties were otherwise ordered to share the costs of production.  A method for selecting a single computer expert was devised and any analysis was to take place in open court.  The order also provided for an in camera review of privilege objections.

Depending on the resources of the parties the solutions applied in these two cases may or may not be appropriate.  However, the issues will largely be the same.  These are identifying the data sources, fixing a method for copying or transferring the data from those sources, limiting the review to non-privileged data, and allocating production costs including those for possible forensic experts.  Merely claiming that the data sources combine both privileged and non-privileged data is a losing argument.  Courts are savvy enough to employ or accept various screening methods even when faced with voluminous mixed data.

Familiarity with this and other case law should help family law practitioners to draft reasonable and compelling proposed e-discovery orders and achieve positive and cost effective results for their clients.

Cases can become particularly complex when they center on a purported family computer used by multiple members of the household.  In Kleiner v. Burns, 48 Fed. R. Serv. 3d 644, 649 (D. Kan. 2000) the court found that that cookie files, along with a host of other types of electronically recorded information, fell within a broad discovery order related to the production of computer data. This data can enable family law practitioners to determine if one party has intentionally violated the privacy of another using the Internet.  There is commercially available software that allows computer users to monitor other users despite attempts at maintaining their respective privacy.

While the scope of e-discovery is broad the formulation of such a request must be specific. Normally state civil procedure rules necessitate that the demand for production or inspection set out the materials to be inspected by individual item or by category, and describe each item and category with specificity. Thus, a computer or Internet expert should be consulted to help enable family law practitioners to execute an appropriate request. 

A request may be denied if the items sought are not sufficiently designated; moreover, lack of specificity enables the responding party to aver, with credibility, that he is not able to understand which documents have been demanded and therefore cannot comply with the request for production.

Generally speaking, the degree of specificity required varies with the particular request. However several reasonable criteria are available. First, has the opposing party been apprised as to what electronic evidence is requested? Second, will the applicable reviewing court be able to determine whether the request has been complied with? Most agree that a reasonable description has been given if the opposing party is able to review its electronic evidence and determine whether it has materially complied with the relevant request.

Finally, e-evidence may be produced in a number of different forms. The request should also set out whether the requesting party wants the e-evidence in a particular form, such as a form that could be searched electronically.

The Internet as a cultural and business medium is playing an increasingly visible role in the formation, establishment and dissolution of family relationships and business operations.  The need for competency and familiarity with e-discovery by family law practitioners will only increase.