Divorce in the Digital Era

Divorce in the Digital Era

Frederick S. Lane

Vermont Family Law Conference15 February 2013

What Every Divorce Lawyer Needs to Know About Electronic Discovery,

Internet Investigations, and Computer Forensics

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-Divorcewww.FrederickLane.c

omwww.ComputerForensicsDigest

.com

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,

Webwww.FrederickLane.c


.com

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

Deviceswww.FrederickLane.c


.com

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 Essencewww.FrederickLane.c


.com

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:– [email protected]

• Call Me:– 802-318-4604



Divorce in the Digital Era

Frederick S. Lane

Vermont Family Law Conference15 February 2013

What Every Divorce Lawyer Needs to Know About Electronic Discovery,

Internet Investigations, and Computer Forensics



Divorce in the Digital Era

Education

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