by Kapil P. Dandamudi
Today, even seasoned family law practitioners face significant obstacles when seeking to obtain and utilize digital information while protecting their client’s interests. Tales of cases involving parties who claim they are unable to work or not currently working, not cohabiting, or do not have substance abuse issues, only to be entirely impeached by the party’s own electronic communications or social media, are ubiquitous in our practice. Clients store relevant case information on servers across the globe and access it at the touch of a button. Given these dangers, it is incumbent on the family law practitioner to keep abreast of the changing technological landscape and utilize new strategies to more fully represent their clients, protect themselves from surprises during the litigation process, and to obtain vital information for use against opposing parties.
According to a 2015 survey conducted by the American Academy of Matrimonial Lawyers (AAML), 97% of its members reported seeing an increase in evidence obtained from smartphones or other wireless devices. Huge Increases of Texts and Apps Evidence in Divorces Say Nation’s Top Lawyers: Smart Phones and Other Wireless Devices Yielding Treasure Trove of Incriminating Information, American Academy of Matrimonial Lawyers (June 9, 2015), http://www.aaml.org/about-the-academy/press/press-releases/divorce/huge-increase-texts-and-app-evidence-divorces-say-nat. Additionally, 99% of its members cited seeing a rising number of text messages used in cases. Further, a Pew Research Group study published on January 12, 2017, found that seven out of ten individuals in the United States use some form of social media. Greenwood et al., Social Media Update 2016, Pew Research Center (Nov. 11, 2016), http://www.pewinternet.org/2016/11/11/social-media-update-2016. According to Pew Research Center, nearly eight out of ten individuals use Facebook while 32% of individuals use Instagram, 31% use Pinterest, 29% use LinkedIn, and 24% use Twitter. Additionally, Pew found that some 64% of individuals ages 50-64 use social media, along with 80% of individuals ages 30-49 (approximately 86% of individuals ages 18-29 use social media). Pew Research Center, http://www.pewinternet.org/fact-sheet/social-media (last visited Mar. 15, 2017). In sum, your current and future clients have used or will use social media, electronic communications, and data storage before and during their litigation.
Why does any of this matter today? In 2015, and in response to several landmark decisions in California and throughout the country, the Standing Committee on Professional Responsibility and Conduct for the State Bar of California (the “Committee”) issued Formal Opinion 2015-193, which, among other things, sets out that, “attorneys who handle litigation may not ignore the requirements and obligations of electronic discovery.” California State Bar Standing Comm. on Prof’l Responsibility & Conduct, Formal Op. 2015-193, 7. The Committee further opined that, “depending on the factual circumstances, a lack of technological knowledge in handling e-discovery may render an attorney ethically incompetent to handle certain litigation matters involving e-discovery.” Id. More importantly, the Committee suggested that:
[O]n a case-by-case basis, the duty of competence may require a higher level of technical know-ledge and ability . . . an attorney lacking the required competence for e-discovery issues has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation.
In particular, the Standing Committee focused on three cases to highlight an attorney’s duty to maintain competence relating to electronically stored information—the most important of which was Zubulake v. UBS, 229 F.R.D. 422 (2004). See also, Dodge, Warren & Peters Ins. Servs. v. Riley, 105 Cal. App. 4th 1414 (2003) (preservation order and forensic examination of electronic storage media); Toshiba Am. Elecs. Components, Inc. v. Superior Court, 124 Cal. App. 4th 762 (2004) (cost shifting of significant electronic discovery burden).
In Zubulake I through Zubalake V, the plaintiff sought to obtain key information located in backup files of her former employer, which had been destroyed. Zubulake v. UBS Warburg, 2004 WL 1620866 (2004). The Zubulake court (over five separate opinions) held that parties to litigation have an inviolate obligation to preserve digital evidence during the course of litigation, or when it is first acknowledged that there is even the slightest chance that litigation may occur. Zubulake v. UBS Warburg, 229 F.R.D. 422, 432-33 (S.D.N.Y. 2004). The court further held that it is the lawyer’s duty to monitor their clients’ compliance in preserving electronically stored data and that a lawyer may have to engage in data sampling to determine the scope and costs of producing or recovering e-discovery data. Id. Lastly, the court held that both the party and the attorney can be sanctioned (monetary and evidentiary) for the spoliation of digital evidence, including inadvertent destruction of this data.
What does this mean for the family law practitioner in today’s changing technological landscape? Although the Committee’s opinion is not binding, a practitioner should read the Committee’s opinion at the very least as setting a base threshold for technological competence for the lawyer’s professional responsibility and as a list of best practices to encourage in the lawyer’s daily practice.
According to the Committee, the first thing an attorney must do in any case, as it relates to e-discovery, is make an assessment of the case’s e-discovery needs. The Committee does not give much guidance on what constitutes an “assessment,” only suggesting that an attorney must determine which “electronic discovery issues might arise during the litigation, including the likelihood that e-discovery will or should be sought by either side.” California State Bar Standing Comm. on Prof’l Responsibility & Conduct, Formal Op. 2015-193, 3. But the Committee’s own opinion is sparse on specific steps to safeguard your client’s interests. Nevertheless, there are some steps to take in order to protect your clients’ data and your own.
Making the Assessment
As a rule of thumb, when obtaining your client’s initial intake information, an attorney should conduct a simple Internet search of their client’s name to determine the totality of their client’s online footprint and how it can best be managed during a case. Using social media to properly vet clients and opposing parties prior to an intake meeting may be determinative in whether or not an attorney should take a particular case.
Social media profiles contain a wealth of information that is vital to family law cases, including details such as a client’s or opposing party’s work history or ability to work, income information, recent purchases or gifts that parties have made above and beyond the marital standard of living, a party’s predilection for substance abuse or alternative lifestyle that may not be in the best interest of the parties’ children, or other relevant information.
Don’t know? Search it.
A good practice is to specifically search for a client’s or opposing party’s information on Facebook and LinkedIn at the outset of a case. A simple Internet search often will populate these items at the top of a search results list. Often, and especially on Facebook, parties do not change their default privacy settings. This means that if a practitioner has access to a Facebook profile (a personal or attorney profile), they likely will be able to see all posts, photographs, and biographical information provided by the user and will be able to track such information throughout the entire litigation, unless the user becomes aware of their security vulnerabilities.
Similarly, if the practitioner has access to a LinkedIn profile, they will likely be able to see the user’s posted activity related to their employment or job search. Finding information for a user’s Instagram or Twitter profile may be more difficult due to account names often being dramatically different than a party’s legal name, but these accounts are often linked to the user’s Facebook or LinkedIn by the user themselves.
New Questions to Ask
Family law attorneys should also adjust current intake procedures to include questions to the prospective client regarding the number of electronic devices the client uses or to which the client has access, their type and location, access to these devices by the opposing party or the parties’ children, use of social media by the client, opposing party and the parties’ children and its frequency, and the client’s storage of data in the “cloud.”
Family law attorneys should also warn clients in their intake meeting to do the following:
After conducting an initial e-discovery assessment, an attorney must conclude whether or not they are competent to handle e-discovery matters that may arise in the case. If they are unable to do so, they must either become competent, or associate with someone who is competent to assist with e-discovery matters. Immediately becoming competent may be difficult, as technological know-how must be constantly refreshed due to changing technological norms. However, there are now several e-discovery experts and firms throughout Southern California who can assist family law practitioners with complex e-discovery issues if necessary.
Even if an attorney does not have the technological know-how to effectively manage e-discovery on their own, they must supervise those with whom they associate to manage e-discovery, as well as the client, and any and all other parties who may provide relevant evidence in the case. In Zubulake, the court admonished counsel for the defendant, stating, “counsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched.” Zubulake v. UBS Warburg, WL 1620866 (2004). Generally, this means that the use of litigation holds is perfectly acceptable for the preservation and safeguarding of data, including archival items, and should be used in cases where an attorney is worried that documents may be purged as a matter of course.
The Standing Committee’s guidance is helpful for more popular forms of current technology. But for apps like Snapchat that are growing in popularity due to the periodic purging of information by the app itself, what is an attorney’s obligation to preserve electronically stored information? What about electronically-stored information that automatically encrypts itself? These unanswered questions and more will likely be the subject of changing guidance from the Committee in the future. However, as technology continues to evolve, so too must the family law practitioner’s understanding of that technology and the solutions he or she implements in daily practice.
Kapil P. Dandamudi practices family law at Phillips Whisnant Gazin Gorczyca & Curtin, LLP. He can be reached at email@example.com.