New Jersey Law Journal             January 3, 2005

HEADLINE: Matrimonial Lawyers Have a New Tool;

Information found in cyberspace can be essential to successful matrimonial litigation

BYLINE: By Jonathan Bick; Bick is 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]. JonVon Kohorn is an associate in the family law practice group with Halloran & Sage of Westport, Conn.

BODY:

Timely and accurate knowledge of all the relevant facts is essential to successful matrimonial litigation. The proper use of the Internet will help give litigants access to relevant information.

The Internet has been recognized by matrimonial attorneys as promoting a variety of goals: identification and substantiation of claims and defenses; discovery of data that permits the parties to better evaluate their respective positions; the simplification and narrowing of issues; and an aid for the conduct of the trial.

Below is a brief primer on Internet law, and tips on how every matrimonial lawyer can use the Internet to his or her advantage.

1. Add an Internet expert to the matrimonial law team. Matrimonial attorneys often rely on the opinions of experts -- such as psychologist and economist -- whose knowledge, skill, experience, training or education can enhance the understanding and analysis of relevant facts. An Internet expert should be added to the matrimonial law attorney's team to help find assets, protect client communications and data, and provide live court testimony.

An Internet expert may also help a matrimonial team with discovery. Courts have considered e-mail and instant messaging writings and, therefore, within the scope of discovery. An Internet expert can locate and inspect the potentially useful information without being oppressive or burdensome.

2. Introducing Internet data. Internet data are subject to the same foundational requirements as data imprinted or written on paper. Once the appropriate foundation is laid, courts have not hesitated to admit Internet data under the business records exception even in the absence of a statute or rule.

To lie the proper evidentiary foundation, the proponent must demonstrate that the information was derived from a reliable source, the Internet records were made and maintained pursuant to a routine procedure designed to assure that the data were accurately converted into a readable form, and the Internet information is unaltered.

3. Internet evidence is special. Internet evidence includes information in the form of databases, operating systems, applications programs and e-mail. A matrimonial attorney should consider conducting his own review on the Internet to find out what others would discover about his client if they conducted such a search. It should be noted that people routinely use the Internet to communicate information they would never "put in writing."

Internet evidence is different from paper evidence. The most obvious difference is associated with getting the evidence before the court. For instance, in most jurisdictions a person may authenticate a writing or an invoice by proving that he or she recognizes the signature as that of the author and that the paper document has not been tainted. In the event a party declines to admit he or she is the author of an e-mail, the conventional paper authentication procedure is not applicable. This is particularly true if the e-mail came from a different account than the alleged e-authors. Recommendation: treat the admission of e-mail as you would telephone conversations.

Another distinction between e-evidence and traditional evidence is the enduring nature of e-evidence. Conventional evidence, particularly records, typically resides in a single physical location. Paper records are easily discarded. Destroying e-evidence is more difficult. Contrary to popular belief, hitting the delete button does not destroy Internet information

4. Internet confidential communications. E-mail and other Internet communications become confidential communications only when a client prepares them for the purpose of transmitting information to aid the attorney's representation. If creation of the Internet communication predates the attorney-client relationship, the Internet communication, if not subject to privilege already, does not become privileged by virtue of its transfer to the attorney's possession. Typically, however, court process must be used to obtain these documents from the attorney.

An attorney has an ethical obligation to prevent third persons from obtaining client confidences through unauthorized access to his or her e-mail and other Internet communications. Thus, the attorney should consider sending confidential information in password-protected attachments. However, if a client chooses to reveal otherwise confidential information to, or in the presence of, persons who are not part of the attorney-client relationship [such as in a chat room], the protection of the privilege may be sacrificed.

Attorneys should establish law office procedures that minimize the likelihood of interception of privileged materials sent via the Internet. Such procedures might entail the segregation of privileged and nonprivileged materials, the use of password-protected Internet mail boxes, the development of an Internet security system set up to allow for only carefully controlled circulation of privileged materials to authorized personnel and a policy of documenting when, and for what purposes, those authorized personnel should gain access to these confidential Internet files.

5. Internet generated evidence. Internet generated evidence normally involves the use of materials found on the Internet that support evidence before the trial court. This evidence includes Internet programs that run simulations based upon those elements of evidence projecting what the results would be.

The programs include those which deal with establishing spousal support and child support, equalizing and balancing property distributions, determining present value of future interests and deferred compensation, as well as establishing the difference between immediate and deferred value of pensions. It should be noted that an appropriate objection could be raised as to the lack of foundation. Demonstrating the appropriateness of the Internet program's author, the foundation on which it is brought into being, and the source of the data that was entered into the program can surmount the objection.

6. Strive for secure communications from the start of your representation. During the client intake process, most family practitioners address the sensitive issue of how to get in touch with the client without revealing themselves to their potential adversary. Secure fax numbers and mailing addresses are often used or suggested. As clients and lawyers become increasingly sophisticated, there are new technologies available to preserve the confidentiality of the e-mail and hide the identity of the e-mailers. If set up properly, a matrimonial lawyer and his client can keep their communications private, and ensure that no one knows they are communicating at all.

The reality, however, is that many clients will continue to send and receive sensitive e-mails on their home or business computers despite warnings to the contrary. Matrimonial lawyers have several options available to minimize the risk of inadvertent or intentional disclosure to or by an unauthorized third party. These include recommending that the client use a new and anonymous e-mail address, having a sweep done of the client's computer or e-mail accounts by a technical consultant and opting either for or against the use of exclusive electronic delivery of certain legal documents.

7. It's not just about computers anymore. Personal Digital Assistants often contain copies of e-mails, attachments, calendars and even pictures. PDAs and similar devices are causes for both concern and interest to the matrimonial lawyer who wishes to maintain the integrity of their "confidential" communications or gain the admission into evidence of another's.

8. Follow the money. The Internet enables fast, efficient and thorough examination of financial records and can potentially uncover fraud. For example, when reviewing a financial affidavit in combination with past financial records that include wire transfers, enter the routing number of the bank accounts into http://www.fedwiredirectory.frb.org/search.cfm to see if the bank account was listed on the affidavit. This is a fast and easy way to catch some bank and credit union accounts intentionally or carelessly left off of a financial affidavit.

9. Share wisely. Matrimonial lawyers differ in their ability and feelings about collaborating with adversaries on nonmaterial aspects of their cases. Some will share "live" word processing documents during the inevitable drafting and re-drafting of their financial affidavits. This prevents costly and wasteful typing and re-typing secretarial costs, office overhead costs associated with mail or facsimile expenses and enables better quality drafting through the reduction of potential "scriber errors" in last minute or midtrial settlement arrangements.

While sharing live documents can be mutually beneficial for all parties, it must be done carefully to avoid problems. The primary land mine to avoid is the inadvertent transmission of prior attorney work product. Once an adversary has your most recent electronic document, they may be able to extract from that document more than what is plainly visible on the normal word processing window. Past discarded edits, tracked document changes and comments thought deleted may be saved. These tools are great for editors and those pursuing a truly collaborative work effort and are often preprogrammed into the most popular word processing programs used by attorneys. However, they can betray settlement points, tactical considerations, and other sensitive information to your adversary. To avoid this problem, save your file in Rich Text Format [RTF] or convert the file to an Adobe PDF.

10. Don't forget to Google! Running a name search through Google can produce pictures, resumes and other useful information. Cold cases reopened for fraud can often present service of process problems for an attorney. In one case, a quick name search produced not only proof of current employment by the defendant, but a very recent picture from a trade publication that was instrumental in accomplishing foreign service.