Computer forensics and eDiscovery can play an important role in the outcome of your client’s divorce or family law case, revealing key details that might otherwise remain buried.
By Brook T. Schaub, Certified eDiscovery Specialist
In a recent divorce case, one spouse suspected the other of hacking into a personal Gmail account in order to gain possible financial information and attorney-client privileged communications that might be valuable in the divorce settlement. The spouse used the security questions to change the password for the account and gained access to all personal and business emails present on the account.
My task was to prove the spouse committed the hacking. Committing a crime during the divorce discussions might not affect the outcome of any settlement; however, it would not be looked upon favorably by a judge. As you can imagine, it would cast a shadow on the character of the offending spouse.
Two subpoenas and a little time online quickly identified evidence that the spouse was the offending party. The Internet Protocol address (think Internet caller ID) used to hack the account was traced to a hotel Wi-Fi network in another state. The hotel registry verified that the current love interest of the spouse was registered there at the time, and the cell tower and GPS data from the spouse’s cell phone traced to the same hotel at the time of the hacking. The spouse subsequently exercised the right against self-incrimination to a new set of interrogatory questions.
Think about your own answers to online security questions. Would your spouse know your favorite sport, mother’s maiden name, and other simplistic questions commonly used? The preventive solution is to lie on the security questions. The computer is only looking for a match between the ones and zeros; it does not care how many children you have or what street you lived on in grade school. This is a point that should be mentioned to your clients at the onset of divorce proceedings. All of your initial meetings should emphasize having your client change passwords and security questions for all online accounts, not just banking and email.
In one case, a computer forensic examiner was hired to look at the data on one spouse’s computer. The court order was very specific as to what the examiner could reveal to the hiring attorney from his examination. In violation of the agreement between counsels and what was approved by the court, the examiner provided privileged email communications to the attorney, who subsequently gave the emails to his client – the opposing spouse. My examination of the opposing spouse’s computer proved the emails were provided and opened by the soon-to-be ex-husband. The lawyer providing the emails was tossed from the case by the judge, and the husband’s credibility with the court diminished significantly. A key logging spy program had also been placed on my client’s computer, which is not an uncommon event in family law cases.
In another case, a 48-year-old male neurosurgeon was convinced by the 28-year-old woman he met on Craigslist to marry her. Since he was already married, this caused some issues. The 28-year-old subsequently made the argument that she was in a putative marriage, because she believed the neurosurgeon was divorced at the time of their marriage. Computer forensics of the chats between the two revealed that, three months prior to the marriage, she was clearly advised that he was already married. Additional computer evidence included her having a copy of his current marriage license and her running Internet search reports on his current wife.
The computer is not just an avenue to investigate and identify hidden assets, fund transfers, driving directions to safe deposit boxes, unknown credit cards, and bank accounts. It is the electronic trail to the opposing party’s life and character. Addictions from gambling, shopping, drugs, or pornography to extramarital affairs, manipulating finances in anticipation of the divorce, using eBay or PayPal used to sell assets, and spying on the spouse electronically can all be revealed through computer forensics. In most cases, spoliation of some form has been present on the computers I have examined over the course of my career.
According to the National Endowment for Financial Education, 31% of U.S. adults who combine assets with a spouse or partner say they have been deceptive about money, and 58% say they hid cash or assets from their spouse or partner.
I recently returned from an overseas trip and exclusively communicated with friends and family through the less expensive text option, instead of phone calls. It reminded me of a case where the husband was claiming poverty in the divorce, only to have the examination of his computer show him sending thousands of dollars in assets to his Brazilian girlfriend, which was verified in his deleted Skype chat. The chat was not something an IT professional would normally locate, nor would an attorney ask for in eDiscovery.
“Mr. Mom” claimed he was a doting stay-at-home father, until his computer use showed that he routinely spent hours on Internet poker websites while his wife was away from the home The time/date analysis was so precise, it could predict when the spouse left and returned from work, as well as when she went to bed. The timelines were matched up with the start of tournaments on the poker websites, so his online time could be measured down to the second.
At the onset of each new family law case, counsel should interview clients concerning computer use and email accounts to determine if computer forensic examinations would benefit the client. The expense for a forensic computer examination for matrimonial litigation is typically affordable due to the limited issues that need to be resolved. The above examples are true case examples. Computer forensics is commonly used in other litigation where Electronically Stored Information (ESI) is important to the client in eDiscovery. In family law matters, any preliminary client discussions should include the security of ESI and whether computer forensic would assist in the case.
The manager of computer forensics and eDiscovery at Eide Bailly LLP in Minneapolis, Brook Schaub is a retired police sergeant and helped start the Minnesota Internet Crimes Against Children Task Force. A Certified eDiscovery Specialist with over 20 years’ experience performing computer forensics, he assisted in updating Minnesota statutes related to ESI and has presented to over 2000 law enforcement officers, lawyers, and business executives.
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Family Lawyer Magazine
Spring 2019 Issue
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