Friday, May 25, 2007

Family law and electronic discovery

Electronic discovery has concerned my business practice more than my family law practice. I can plead some extenuating circumstances: 1) most family law cases have the kind of issues where non-electronic discovery will do the job quite well, and 2) I do not think I have seen an article about electronic discovery and family law. Several things over the past few weeks have made realize electronic discovery will have an impact on family law.

Reading the article E-Evidence: Who Let the Dogs Out? on's Legal Technology page crystalized a few stray thoughts. I have a previous post about the Alec Baldwin case wheere he got himself recorded on voicemail. I passed over the David Hasslehoff mess with its video. Then I became aware of a local case where wife found husband's porn collection on his home computer. The voice mail, the digital video, and the porn are all electronic data. Duh. You may think it is obvious but it took the following paragraph from this article that made me realize that things are not so obvious:

We still expect lawyers to know the evidence in their cases and produce it, but electronic evidence forces counsel to rely on crude tools and methodologies and work through technical intermediaries of uneven ability who speak in acronyms and jargon. Lawyers are increasingly so disconnected from the evidence that when we search for evidence, we tend to find only what we seek instead of what's there to be found.
Not that this article was geared to anything but business law cases. The point remains that we are not thinking hard enough about how commonplace is electronic discovery.

I still do not see that every family law case will require electronic discovery. I suspect that some clients who would benefit from electronic discovery will not be able to pay the costs for electronic discovery. I do see a benefit in those cases where a spouse may hide assets. I see a benefit, also, where custody is an issue and the parties may have materials on their computers which may shed light on the best interests of the children.;

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