What, Where, How—and How to Get It "In"

Data and information stored somewhere electronically.

1: What is electronic evidence?

2. Where does an attorney find electronic evidence?

  • Individual desktop-personal or employment-related
  • Individual laptops-personal or employment-related
  • Network hard disk
  • Removable media
    • Floppy disk
    • Tapes
    • CDs
  • PDAs
  • Optical disks
  • Hard drives
  • Network storage
  • Remote Internet storage
  • Backup devices
  • Archives
  • Zip drives
  • Personal digital assistants
  • Cellular phones
  • Camera phones
  • iPods/MP3 players
  • Internet service providers
  • Computer systems of others

3. From what sources do attorneys obtain electronic evidence?

  • Spouses
  • Closely held businesses
  • Employers
  • Friends
  • Relatives
  • Investment firms
  • Others

4. What electronic evidence should an attorney ask for in discovery?

  • W/P Files (word processing)
  • Spreadsheet files
  • Budgets
  • Financial plans
  • Historical expenditures
  • Expert's financial models
  • Financial management programs
    • Checks
    • Credit cards
    • Investments
  • Database files
  • Contact lists
  • Assets
  • E-mails
  • Calendars
  • Log files
  • Browser history
  • Network logs
  • Audit trails
  • Pictures
  • Movies
  • Videos
  • Text messages
  • Audio recordings
  • Voicemail
  • Instant messaging logs

5. How does a lawyer get electronic evidence from the opposing party?

  • Hire a computer forensic expert:
    • To collect data and information
    • To properly preserve the data
    • To analyze the data
    • To present the date to the court

6. How does an attorney request electronic evidence?

  • Send a notice to preserve and retain data to opposing counsel.
  • Federal Rule of Civil Procedure 26 obligates parties to provide descriptions of documents and data compilations.
  • Federal Rule of Civil Procedure 34 permits a request to produce data compilations.
  • Depose custodian of the records.
  • File a protective order.
  • Obtain an order to turn over hard drive.

7. How does an attorney introduce electronic evidence into court?

  • Purposes
    • Only evidence on issue
    • Shows inconsistencies with other data
    • Ease of searching information
    • Ease of manipulation of data

  • Authority to use
    • Fed. R. Civ. P. 34-Electronically stored information is subject to subpoena and discovery, which permits a party to request data compilations for production.
    • Fed. R. Civ. P. 26-Each company has the duty to preserve documents in a particular case.
    • Fed. R. Evid. 11-1001-Defines writing and recording as letters, words, or numbers of stating, photographing, magnetic impulse, mechanical or electronic recording, or other forms of data compilation.

  • Overcoming a hearsay objection
    • Business record exception
    • Present sense impression
    • Excited utterance
    • Statement against interest
    • To explain conduct or establish intent FA

Roberta (Bobbie) Batley is a New Mexico Board Recognized Specialist in Divorce and Family Law and is an associate at Little & Gilman-Tepper, P.A. in Albuquerque, New Mexico. Ms. Batley is an active member of the ABA Section of Family Law and currently is chair of the Membership Committee and a member of the Continuing Legal Education Committee. She is listed in Best Lawyers in America, and she speaks nationally and locally. The author acknowledges the assistance of Sandra Morgan Little in preparing this checklist.

Published in Family Advocate, Volume 29, No. 3, Winter 2007. © 2007 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.