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July 28, 2011 Articles

The Limits of Electronic Discovery in Family Cases

By Dolly Hernandez

Modern technology has brought a new wave of evidence to marital and family-law proceedings as parties are utilizing electronically stored information (ESI) found on social media websites such as Facebook, MySpace, Twitter, and LinkedIn, along with information stored on computers and cell phones to prove aspects of their case. The technology that makes our lives easier also creates evidence. For instance, our cell phones are used to create text messages. Our computers contain our Internet search history, cookies, and items downloaded from the Internet. As a result of litigants’ increased dependence on technology, practitioners must become familiar with the type of information one can garner through the Internet, a computer, or a cell phone and determine how this information, in the form of photos, tweets, wall posts, emails, and blog postings, to name a few, can be obtained and eventually become evidence—or the smoking gun—in a family-law proceeding.

Limitations on Electronic Communications
Typically, family-law practitioners are advised by clients that answers to issues in their case will be unveiled with the production of their spouse’s email communications. It then becomes a question of how these email communications can be obtained. One option is to send a discovery request to the opposing party that requests ESI. The discovery request should specifically delineate the spouse’s email account for which the records are sought and a specific time frame, and it should delineate with specificity which email communications are sought and which are germane to legal issues in the proceeding. Alternatively, a party may want to subpoena a spouse’s email communications. However, such a disclosure pursuant to a subpoena, absent a release from the subscriber, can constitute a violation of the Electronic Communications Privacy Act (ECPA), which encompasses the Wiretap Act 18 U.S.C. § 2510 et seq. and the Stored Communications Act, 18 U.S.C. § 2701 et seq.

The ECPA was enacted to protect the privacy of subscribers by prohibiting an “electronic communication service” or a “remote computing service” from divulging the contents of a communication. 18 U.S.C. § 2702(a) (3); Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965, 971(C.D. Cal. 2010) (“Congress passed the Stored Communications Act in 1986 as part of the Electronic Communications Privacy Act. ‘The SCA was enacted because the advent of the Internet presented a host of potential privacy breaches that the Fourth Amendment does not address.’”) (internal citations and quotation marks omitted)). The exceptions for the disclosure of communications are specifically enumerated in 18 U.S.C. § 2702(b) (1)–(8), and exceptions for the disclosure of customer records are specifically enumerated in 18 U.S.C. § 2702(c) (1)–(6).

The following are exceptions for the disclosure of communications:

A provider described in subsection (a) may divulge the contents of a communication—

(1) to an addressee or intended recipient of such communication or an agent of such addressee or intended recipient;

(2) as otherwise authorized in section 2517, 2511(2)(a), or 2703 of this title [18 USCS § 2517, 2511(2)(a), or 2703];

(3) with the lawful consent of the originator or an addressee or intended recipient of such communication, or the subscriber in the case of remote computing service;

(4) to a person employed or authorized or whose facilities are used to forward such communication to its destination;

(5) as may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service;

(6) to the National Center for Missing and Exploited Children, in connection with a report submitted thereto under section 2258A [18 USCS § 2258A];

(7) to a law enforcement agency—

(A) if the contents—

(i) were inadvertently obtained by the service provider; and

(ii) appear to pertain to the commission of a crime; or

(B) [Deleted];

(8) to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of communications relating to the emergency.

The following are exceptions for the disclosure of customer records:

A provider described in subsection (a) may divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by subsection (a)(1) or (a)(2))—

(1) as otherwise authorized in section 2703 [18 USCS § 2703];

(2) with the lawful consent of the customer or subscriber;

(3) as may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service;

(4) to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency;

(5) to the National Center for Missing and Exploited Children, in connection with a report submitted thereto under section 2258A [18 USCS § 2258A]; or

(6) to any person other than a governmental entity.

While these exceptions exist, an exception does not exist to the prohibition for discovery subpoenas in civil cases. O’Grady v. Superior Court of Santa Clara County, 139 Cal. App. 4th 1423, 1427 (6th Dist. 2006); Viacom International, Inc. v. Youtube, Inc., 253 F.R.D. 256, 264 (S.D. N.Y. 2008) (motion to compel denied by the court regarding the disclosure of the content of private videos on YouTube because an exception for disclosure does not exist under 18 U.S.C. § 2702); J.T. Shannon Lumber Co., Inc. v. Gilco Lumber, Inc., No. 2:07-CV-119, 2008 U.S. Dist. LEXIS 104966, *7 (N. D. Miss. August 14, 2008) (motion to quash subpoenas duces tecum granted that were served on Microsoft Corp.; Google, Inc.; and Yahoo!, Inc.); In re Subpoena Duces Tecum to AOL, LLC, 550 F. Supp. 2d 606, 609 (E.D. Va. 2008) (quashing of a subpoena to AOL upheld because a civil discovery subpoena does not fall within one of the exceptions to the ECPA, allowing for disclosure by an Internet service provider).

Therefore, a party’s subpoena to an electronic communication service seeking their spouse’s email communications shall most likely be met with a motion to quash subpoena duces tecum and, alternatively, a motion for protective order as the disclosure of communications, pursuant to the subpoena, absent an exception or a release from the subscriber, would be a violation of the ECPA.

Not until late 2010 did a court rule upon the act’s application to social media websites. In Crispin, subpoenas were served by defendants upon a number of social media websites, including Black Market Art Company; Facebook; Media Temple, Inc.; and MySpace, Inc., in an action that stemmed from the plaintiff’s granting of an oral license to the defendants for the use of certain plaintiff’s work in a limited manner in the manufacture of garments. Crispin, 717 F. Supp. 2dat 968–69. Three of the subpoenas sought the plaintiff’s basic subscriber information coupled with all of the plaintiff’s communications with a tattoo artist. Id. at 969. The plaintiff filed an ex parte motion to quash subpoenas, citing three arguments in support of the position, including the prohibition against such disclosure from an Internet service provider pursuant to the Stored Communications Act. Met with the issue of whether to quash the subpoenas to the social network sites, the court in Crispin was left to determine the ultimate question of whether the Stored Communications Act applied to social networking sites such as Facebook and MySpace. Id. at 977 (citing Quon v. Arch Wireless Operating Company, Inc., 529 F.3d 892 (9th Cir. 2008) (the court determined that a provider of text-messaging services was an electronic communication service or a remote communication service, thus falling within the ambit of the act)).

As to the first prong of this analysis, the court concluded that all three sites provide private messaging or email, which rendered them an electronic communication service. Id. at 980; Theofel v. Farey-Jones, 359 F.3d 1066, 1075 (9th Cir.2003) (“Several courts have held that subsection (A) covers e-mail messages stored on an ISP’s server pending delivery to the recipient.”) (internal citations omitted). Also, messages remaining on a server after delivery fall squarely within the meaning of electronic communication service under subsection (B). Id. at 1075.

After the court’s determination that the three entities were electronic communication service providers, the court then addressed the second prong of the analysis and determined whether the messages sought “constitute electronic storage within the meaning of the statute.” Crispin, 717 F. Supp. 2d at 982. The statute provides two definitions of electronic storage that can be found at 18 U.S.C. § 2510(17) (A) (“any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof”) and 18 U.S.C. § 2510 (17) (B) (“any storage of such communication by an electronic communication service for purposes of backup protection of such communication”).

After analyzing the pertinent privacy issues, the court opined that webmail and private messaging are forms of communications media that are private and, thus, stored messages are not accessible to the public. Id. at 991. Thus, the court did not permit the disclosure of private messaging with respect to the Media Temple subpoena as well as the Facebook and MySpace subpoenas. As to wall postings on Facebook and comments on MySpace, the court advised that the trial court record presented was insufficient for the court to make a determination and remanded the case to the lower court for further development of the evidentiary record.

Family practitioners should keep in mind that a civil discovery subpoena, which requires disclosure of ECPA-protected matter, is facially invalid and unenforceable and shall be quashed by the court upon motion. The act’s “zone of privacy . . . protects internet subscribers from having their personal information wrongfully used and disclosed by unauthorized private parties.” J.T. Shannon Lumber, 2008 U.S. Dist. LEXIS 104966, at *5. Family practitioners need to keep in mind that unless an exception exists to the act, the court will most likely cloak private communications. However, the question still remains as to whether messages that may be deemed public, such as wall postings and comments on social networking sites, will be protected by the act.

Production of Computer Hard Drives and Cell Phone SIM Cards The production of computer hard drives and cell phone SIM cards was addressed in a wrongful-death action styled Holland v. Barfield, 35 So. 3d 953, 954 (Fla. 5th DCA 2010), where a petitioner sought a writ of certiorari to quash an order entered by the trial court, compelling the petitioner to produce all computer hard drives and cell phone SIM cards in her possession to the respondent. The respondent sought to obtain evidence of communications such as text messages, and messages on Facebook and MySpace between the defendants. Id. at 954. The trial court, while granting the respondent’s motion to compel, provided for specific measures that would prevent the dissemination of information by requiring the respondent to agree to a protective order and confidentiality agreement.

In its analysis, the court provided a three-prong test to determine when a search might be approved so long as the following elements are met by the requesting party: “(1) evidence of any destruction of evidence or thwarting of discovery; (2) a likelihood the information exists on the devices; and (3) no less intrusive means exists of obtaining the information.” Id. at 955 (citing Strasser v. Yalamanchi, 669 So. 2d 1142 (Fla. 4th DCA 1996)). When determining whether a less intrusive means exists, the court further espoused that a party could acquire documentation involved by accessing the computer in front of a representative of the opposing party after an agreed-upon procedure was established for the search. The court held that the order’s scope, without limit or time frame, of all the information on the petitioner’s computer and mobile phone SIM card violated the petitioner’s right of privacy and the right against self-incrimination or privileges. Id. at 956.

As a preventative measure, when a discovery request includes ESI, attorneys for the parties should confer and agree to a protocol for the exchange of ESI. The protocol should include, at a minimum, a procedure for review by the producing party to preserve privileged or confidential documents, a procedure for the production of relevant documents including but not limited to agreed-upon search terms, and the format for production of ESI.

Conclusion Discovery requests in family proceedings should include ESI. ESI presents an interesting predicament for practitioners who consult with clients who utilize social media websites or whose spouses utilize social media websites. Practitioners should therefore err on the side of caution, as no one wants to calculate damages for a spoliation of evidence claim for tampering with evidence.

Keywords: litigation, family law, electronically stored information, social media

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