Digital Evidence in Matrimonial Cases (2016)

Part I Digital Offense: The collection and use of digital evidence, a/k/a “Electronically Stored Information” or (ESI) has become an important factor in all forms of litigation. In Matrimonial Litigation email, SMS, social media and other forms of ESI can be critically important with respect to financial issues, marital waste, custody etc. Attorneys must have a fundamental understanding of the core concepts regarding the proper collection and use of ESI, and how to defend against same. This program will provide basic, plain English explanations of what attorneys need to know about proper collection,preservation, authentication and use of ESI, including the foundation(s) for admissibility and challenges to such evidence. The program will also cover the legal and ethical boundaries between aggressive investigation and collection of ESI on the one hand, and the unlawful unethical methods of same which have become an all too common reality.

 

Part II Digital Defense: With the proliferation of computing devices, the use of wireless internet networks and shared ‘cloud computing environments’ in virtually every home and office, incidents of electronic spying and unlawful collection of confidential (potentially privileged) ESI by litigants, and divorcing spouses in particular, has become a virtual epidemic. Clients and their counsel must take great care to ensure their confidential electronic communications remain private, and thatsensitive digital information remains secure from the reach of adverse parties, particularly in the case of parties who are, or have recently cohabited or had physical access to devices or networks. This program will separate fact from fiction in the area of electronic ‘spying’; identify and explain the most common ways in which these compromises occur; and present a practical, step by step approach to drastically mitigate those risks for parties in enhanced risk scenarios such as a contentious divorce.