ESI in Family Law: Our Digital Dilemma

Cari M. Pines and Kevin James Mooney

Editor's Note: Cari M. Pines, CFLS, practices Family Law in Encino, California. Cari is the Vice Chair 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.

  • When was the last time you obtained cellphone records from a subpoena to the carrier?

  • Have you ever convinced a court to order a spouse to disclose his Facebook password?

  • Is it a violation of the Rules of Professional Conduct to advise a client to delete a Facebook post?

These questions and so many others related to Electronically Stored Information (“ESI”) form only the tip of the iceberg of issues that family law attorneys across town have been posing since Kevin Mooney and I hit the speaker circuit in late 2015 setting out to make ESI user-friendly in family law.

Over the past year and a half, we have banked hundreds of hours in education and research; crafted dozens of sample ESI letters, pleadings and discovery forms; driven and flown thousands of miles across and outside California; and spent hundreds of hours of making slides, writing articles, and in live and virtual meetings with experts in the field of e-Discovery across the country. We find ourselves spending hours on end delving into troubling quandaries about ESI including the approaches to collection, preservation and examination; overcoming the exorbitant cost of analytics and data storage; and even the most basic questions about the Evidence Code and the Code of Civil Procedure as they relates to the ESI equivalent of the non-electronic evidence that attorneys have been collecting and presenting since well before the advent of the computer.

It is at the same time both comforting and distressing that this vast area of study is making even the pillars of our family law community question what we collectively do know and, more importantly, how much we still do not. Indeed, these concepts that we all struggle with have stumped even the best and the brightest family law attorneys and judges, and in seeking guidance from national eDiscovery experts, even they are quite surprised at how different ESI plays out in a family law setting.

The anomalies of the family law setting confound the ESI norms. Unlike most civil and criminal matters, family law related evidence may remain relevant from decades past and lasting through years into the future. Family courts retain continuing jurisdiction over such issues as child custody and support until the age of majority and over the division of property until the time that all assets have been disbursed. Short of retaining Dr. Emmett Brown to go back and forth in time in his Delorean to capture such evidence, family law litigants must consider the outer bounds of jurisdictional realities that most civil and criminal matters don't even begin to comprehend. Additionally, family law is notable for such unique issues as the questionable expectations of privacy, fiduciary rights to access data of marital partners, and even the immediate need to obtain and collect data which conflicts with the statutory discovery scheme -- adding yet another layer of complexity to family law ESI.

Since our initial full day seminar in December of 2015, we have put together numerous ESI panels on a variety of family law topics ranging from eDiscovery to custody and even to such esoteric sub-categories as the intersection of ESI and special needs custody litigation. Just when we think we have a handle on the continual stream of questions, the answers slip from our grasp as quickly as the universe of technology expands in our daily lives. Whereas last year we were perplexed by the import and legal application of emails and text messages, today we find ourselves pondering the how to deal with Yelp posts, heartbeat monitors on the Apple watch, and even the impact of Pokemon Go on a custody dispute. The “internet of things” has expanded our universe of evidence nearly into the realm of science fiction.

Oddly, in attempting to seek insight from academia about how the education of law has adapted to the reality that ESI has become the most prevalent form of evidence in litigation today, as well as the fact that law students now know more about technology than their teachers and our seasoned practitioners, we have been taken aback to learn that law schools just don’t seem to be teaching this stuff. Regardless of whether the ambivalence and resistance by law schools and much of the legal community is fear-based or due to a lack of knowledge, the our State Bar has made it patently clear that we can no longer ignore this call, cellular or otherwise.  As law schools continue to matriculate these digital kids into our analogue world of family law, we will ultimately need to loosen our grip on our WordPerfect floppy disk, bluebacks and legal-sized paper and begin to instead embrace the novelties that will actually enhance our practice however terrifying that may seem.

Three of the most practical tips we can offer from our accumulated knowledge thus far would be:

1. The proverbial “hold” letter is actually less terrifying than it seems and, if done properly, will actually serve to organize your case from the outset. We contend that it's critical to detail for the opponent (represented or otherwise) specifically what the pertinent issues are in each matter, what evidence may become necessary, and provide detailed instructions about the duty to take all necessary steps to protect such evidence.  As well, a letter to one’s own client explaining that he/she too has the duty to preserve any ESI evidence that the other side may potentially need is also essential.

2. If at first you don’t ask for it correctly, don’t bother to try again. The Civil Discovery Act of 2009 made it rather clear that the Legislature didn’t like the idea of requiring the repetitive download of digital data at another’s whim.  As such, the CCP provides that one must only produce discovery “documents” once and only in the format that was specifically demanded. The idea of requesting a specific format for production was not even a consideration for most family law attorneys as recently as only six months ago and, even now, many attorneys have not embraced the importance of specifying production format. But ignorance or no, the moral of the story is be sure to ask for the form you really want because failure to specify could mean you get what you get - period. Although we contend that fiduciary duties may provide other means to get around the one-production/one-format limitation, in specifically trying to manage this dilemma, we recommend that parties stipulate to produce in the most convenient format while maintaining the right to later request subsequent production of the very same evidence in an alternate format (e.g. native) if that turns out to be necessary to the litigation.

3. You can't tap your own wire. While there are a number of statutes that purport to protect the privacy rights of internet users by making the act of accessing another's data unlawful, these laws fail to acknowledge the fact that marital partners may share community property right to ownership of such data. As such, fiduciary duties may provide not only the right to access same but perhaps even impose the obligation of full disclosure by the data's creator. It is highly unlikely that a spouse would be prosecuted for accessing data contained on a community property device or account.

The land of family law ESI, which we have come to refer to as “FL-ESI,” has truly created a paradigm shift that will take us years, if not longer, to fully understand and embrace. Making sense of the non-sensical is the true test as we embark on this adventure.

As we continue to increase our understanding of FL-ESI through the professional contacts we’ve made, we are at the very least building a strong network of experts and resources in this field. Our goal is to continue gathering and sharing knowledge in the seminars that we have been honored to have been invited to produce and present before the end of this year which include a panel on Ethics and Competency at the Annual State Bar Conference on October 1, 2016 and a live courtroom demonstration for LACBA's Child Custody Colloquium on October 15, 2016 as well as our second annual full day MCLE event sponsored by Levitt & Quinn and ACFLS on November 19, 2016 at Pepperdine School of Law.


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