Divorce in the Digital Era

Divorce in the Digital Era
What Every Divorce Lawyer Needs to Know About
Electronic Discovery, Internet Investigations, and
Computer Forensics

Frederick S. Lane

Vermont Family Law Conference
15 February 2013
www.FrederickLane.com www.ComputerForensicsDigest.com

General Background
• Attorney, Educational
Consultant & Lecturer
• Author of 6 Books
• Computer Forensics
Expert
• 10 Years -- Burlington
(VT) School Board
• Technology & Privacy
Specialist
• Student Safety Advocate

Previous Books


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

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-Divorce

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 …

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, Web

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.

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?

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


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)

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

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

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 Essence

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-Parenting

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

Divorce in the Digital Era

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