Don’t Get Rid of Your Cell Phone --
and Other Things You Need to Know About Electronically Stored Information and the Divorce Process in Court
By Christy A. Zlatkus, Esquire
When you are going through a divorce, there are a million and one things your lawyer will tell you to do or not to do. If you’re already in the process, you’re likely already swimming in it: Do not speak poorly about your ex within earshot of your children. Do not post about your case on Social Media. Do show up on time for court-mandated parenting classes. The list is endless. There are so many things you should take action on, so many things to avoid… it can be difficult for your lawyer to list each and every single one, and overwhelming for your already stretched nervous system to keep track of. To break down some of it down into bite sized– or byte sized!– chunks, this blog post walks you through the dos and don’ts of electronically stored information.
Destroying evidence is bad. This is something that every person who has ever watched an episode of Law & Order or Suits can tell you. Evidence must be preserved. You cannot change or destroy any electronic evidence during your case (or when you know your divorce is imminent). This is true both in criminal cases and in civil cases like your divorce.
Yes, social media is evidence. Take for example your Facebook feed. Let’s say one night, in a fit of pique, you post about “Stupid ex-husbands who never pick up the kids on time, breaking their tiny hearts.” Or “Crazy b*tches who cheat on their men.” In the cold light of the next day, you (rightfully) regret your ill-conceived post. You cannot delete that post without preserving it! This could mean archiving your Facebook data before taking the post down or leaving it alone. Hopefully, you won’t get into this mess by posting inappropriate messages in the first place, but if you do, make sure that you don’t destroy the evidence of your misguided tweets/posts/or messages. Along with social media posts, you cannot delete any e-mails, text messages, voicemails, personal messages, or any other electronic messages between you and the other party or any other person in connection with the underlying divorce. It also can include any accounting software you may use.
Hold onto any electronics that have electronically stored information. We know Marie Kondo is tapping on your subconscious (and damn it, you deserve to have some joy sparked during this rough time!) but definitely don’t scrap any gadget that has data on it, even if it seems irrelevant to your case. This includes laptops, cell phones, external hard drives, iPads/tablets, security systems that record video or audio, or step trackers. Imagine a scenario where you are at the Verizon store and you are getting your own cell phone plan, separate and apart from your spouse. The store clerk asks you if you would like to trade in your old iPhone 7 for the new iPhone 10. You are salivating at the thought of that new iPhone. You can feel it in your hands. You can save hundreds of dollars by exchanging your old iPhone 7. As tempting as it is, you cannot exchange your old cell phone for an upgrade at any point prior to getting your final judgment of divorce. You can upgrade, but you must keep the old phone safe until your case has concluded. All of these devices have electronically stored information that could be subpoenaed during your divorce. If a subpoena is issued, and you no longer have that device (i.e. you destroyed evidence), you could be in big trouble.
If a Court deems you have destroyed evidence or potential evidence, the penalties can be quite severe. The Court could prohibit you from presenting certain evidence yourself or fine you for the cost of the recreation of the lost or damaged evidence.
If in doubt, don’t throw it out! There’s plenty of time for KonMari once you have your judgment in hand.
One cautionary tale arises out of a case in the Commonwealth of Virginia, specifically Lester v. Allied Concrete Company, 2011 Va. Cir. LEXIS 245 (Va. Circ. Ct. 2011 Sept. 6, 2011). This case was not a divorce, but a wrongful death case brought by a man whose spouse died in an automobile accident. The man had posted several photos from his Facebook account that concerned his lawyer. He was seen in photos holding beer and wearing a t-shirt stating “I [heart] hot moms” and having a good old time after the death of his spouse. His lawyer told him to “clean up” his Facebook and MySpace and the man did so, taking down these photos of him enjoying himself after his wife’s death. Ultimately, the man’s actions were discovered and the Court levied a heavy sanction against both lawyer and client. The lawyer was ordered to pay $542,000.00 for instructing his client to remove photos from his Facebook provide and the client, himself, was ordered to pay an additional $180,000.00 for obeying the instructions.
The moral of that story is to never destroy evidence and preserve relevant evidence that you know, or reasonably should know, will likely be requested by the opposing party in reasonably foreseeable litigation such as your divorce. If you are unsure about whether or not something is or contains electronically stored information that may be relevant to your case, ask your attorney. When in doubt, preserve it.