ESI – the 800 Megabyte Gorilla in the Family Law Courtroom
By Kevin J. Mooney, JD, MBA, MPA, CFLS
Despite years of family law attorneys’ attempts to persuade civil attorneys that family law does actually operate under the same Rules of Evidence as civil law, it remains undeniable that the majority of family law practitioners still wish that civil litigation’s burgeoning focus on Electronically Stored Information (“ESI”) would stay in civil courtrooms where it belongs. We who practice in the family law arena, attorneys and bench officers alike, are seemingly united in our aversion to the prospect that we will soon have to face the reality that the 800 megabyte gorilla of ESI is present in nearly every family law matter we encounter today and we will either need to learn how to tame and make the most it or be devoured by it.
It is difficult to remember a family law matter that didn’t involve a text message, a digital photograph, an email or a post on Facebook. More intimate than civil cases, family law cases are the perfect breeding ground for misuse of social media, stalking and spying on spouses, and domestic violence claims that arise from an email or other online or electronically generated activity.
Although we may consider these evidentiary sources in trial prep on a daily basis, many still profess that family law attorneys needn’t concern themselves with ESI. Why then, one might ask, does the denial of this interaction between family law and ESI still exist? We must acknowledge that the tide began to turn not that long ago when every good family attorney had at least one client whose marriage split up in the wake of a rekindled relationship on Facebook. Similarly, children of family law litigants rarely make it to adulthood without experiencing parental conflict over kids streaming movies or music or obsessing on an online game that one parent decried too violent or otherwise inappropriate. Fights between parents over custodial exchanges of their kid’s cellphones, iPods and laptop have replaced disputes over baseball cleats and barrettes which had long been family law rites of passage yet we persist in denying that the full impact of ESI has hit us.
Similarly, custody evaluators and other mental health professionals who touch the lives of family law litigants are also saturated with ESI issues. They are inundated with such concerns as Our Family Wizard access, email snooping, and the obsessive monitoring of the other party’s Instagram posts or other online activities— all with the eternal hope that it will result in finding that one piece of evidence likely to convince the judge that the other parent isn’t acting in the child’s best interest.
We’ve reached the point where electronic devices are now generating, recording, and often times broadcasting information that the user neither intended, authorized, nor may even be aware that such data activity is occurring. It is not only smart phones, online activity or other forms of personal electronic communication that we need to be aware of, but also electronic thermostats, security cameras, smart light bulbs, vehicle event data recorders, and an endless list of other seemingly innocuous devices that go beyond providing useful services to enhance our lives. Our own electronic devices now also capture, and potentially disseminate, the personal and presumed private details about our lives. Such information, once realized and accessed, has the potential to significantly impact a court’s decision in even the most simple of our family law matters.
One of the reasons that we have been reluctant to acknowledge ESI’s application in family law is that, to date, the primary focus of education in this area has been limited to ESI’s impact on an attorney’s legal liability and competency rather than the practical use and relevance of this evidence in nearly every case. Instead of teaching how we find, obtain, use and display an email in a courtroom, continuing education courses have been dwelling on the dangers of finding kiddie porn on our clients’ hard drives, the lack of confidentiality of unencrypted iCloud storage, and the risks of advising clients to pull harmful posts off their Instagram feed. Although admittedly crucial to avoiding malpractice, professional discipline, monetary sanctions, or some other career altering event, this form of defense strategy has served to further alienate the family law practitioner from embracing ESI and its invaluable application to our practice. Leaving the liability and competency issues to the experts who have so proficiently guided our legal communities’ education on these principles, the time has come to unveil the practical mysteries of ESI and find a home for it in our daily practices.
It is understandable that family law bench officers might find themselves struggling with decisions about how to redress violations of disclosure, spoliation of evidence, and misuse of ESI discovery in garden variety family law matters. The case law in this area is essentially limited to multi-million dollar corporate and civil lawsuits decided by Federal magistrates and which offer little guidance or application to the everyday custody disputes where a party overwrote data on a cell phone, deleted emails, or manipulated a photograph or other item of electronically generated evidence submitted at trial. Without appropriate authority upon which our judicial officers can rely, it is no wonder that we are faced with confusion and the uncertainty of decisions from one courtroom to another and with attorneys playing fast and loose with the rules. The most efficient way to tame this gorilla is to educate the bench and bar and elucidate the practical application of ESI in our courtrooms and legal community.
The time has come to learn the best methods for discovering the existence of text messages, ibooks, snapchats, eBay alter egos and the like. Once we find out they exist, we need to learn the optimal methods for demanding them from the other side. Then, if we’re skillful enough to actually obtain them, we must learn how to use them in order to ensure that we will actually be able to show them to a bench officer and have them admitted into evidence. These are the tools that today’s family law attorney must master.
It is highly ironic that while we continue to deny ESI as an integral part of our family law practice, no family law attorney would want to calculate child support without it. It is time to for us to stand face to face with the 800 megabyte gorilla. It is time to embrace the intricate convergence of family law and ESI which magnifies the already larger than life facts and circumstances of our cases — now even more so in “flash” and “real-time.
Editor’s Note: Cari M. Pines, CFLS, practices Family Law in Encino, California. Cari has become an officer of The Family Law Section of the Los Angeles County Bar Association. Kevin James Mooney, CFLS, practices Family Law with Minyard Morris in Newport Beach, California.