AAML Says If Divorce is Pending Stay Off Facebook

Posted on February 13, 2010 by Alexander D. Nirenstein

If your status is separated or going through a divorce, you might want to stay off Facebook. An overwhelming 81% of the nation's top divorce attorneys say they have seen an increase in the number of cases using social networking evidence during the past five years, according to a recent survey of the American Academy of Matrimonial Lawyers (AAML). Facebook holds the distinction of being the unrivaled leader for online divorce evidence with 66% citing it as the primary source.

"Going through a divorce always results in heightened levels of personal scrutiny. If you publicly post any contradictions to previously made statements and promises, an estranged spouse will certainly be one of the first people to notice and make use of that evidence," said Marlene Eskind Moses, president of the AAML. "As everyone continues to share more and more aspects of their lives on social networking sites, they leave themselves open to much greater examinations of both their public and private lives in these sensitive situations."
 

Overall, 81% of AAML members cited an increase in the use of evidence from social networking websites during the past five years, while just 19% said there was no change. Facebook is the primary source of this type of evidence according to 66% of the AAML respondents, while MySpace follows with 15%, Twitter at 5%, and other choices listed by 14%.
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Voicemail is Discoverable

Posted on March 26, 2007 by Alexander D. Nirenstein
Messages left on voicemail can be introduced as evidence. Under Rule 34 (a) of the newly adopted amendments to the FRCP Rules, electronically stored information is now described as; "electronically stored information - including writings, drawings, graphs, charts, photographs, sound recordings, images and other data or data compilations stored in any medium from which information can be obtained - translated, if necessary, by the respondent into reasonably useable form, or to inspect, copy, test or sample any designated tangible things which constitute or contain matters within the scope of Rule 26(b). Voicemail as compared to e-mail in electronic discovery has rarely been an item of interest in the majority of production disputes. In discussions with large numbers of attorneys throughout the past few years, when we bring up voice mail messages as discoverable ESI, the majority of litigators are stumped as to why voice mail is not brought up in civil litigation. Government investigators and trial lawyers alike are being trained on the retrieval of electronic data, including digitized voicemail. Odds are they will be able to get it. Digitized voicemail is a discoverable medium because the rules that govern discovery allow parties to request "data compilations." Under these rules, courts have ordered the production of relevant voicemail messages and files and have even required the producing party to identify all back-up files or archival tapes that would provide information about deleted data. Plan to Act Now Now, rather than when faced with a government subpoena or civil discovery request, is the time to plan your response to requests for voicemail records. Responding to these requests will be no small task. Unlike e-mail, voicemail programs typically do not have a built-in search capability. Messages cannot be scanned by the human eye for key words and phrases; each voice message must be listened to in its entirety in real time in order to determine if it contains relevant information. Planning ahead on how to respond to requests will benefit you in several ways. * If you become involved in litigation, you will need to search your own voicemail database for messages to support your case because federal rules require mandatory disclosures of materials that a party intends to use to support its claims and defenses. * A key admission from the other side may come in the form of a voicemail. If you do not locate and disclose the voicemail at the outset, you may be barred from using it to prove your case. You may have an affirmative duty to maintain your voicemail records. Because digitized voicemail is discoverable, failing to maintain this data may constitute "spoliation" of evidence, meaning that if you fail to preserve key voicemail messages that your adversary claims are relevant, you may be barred from contradicting the evidence that your adversary claims was contained in the voicemail. Digitized voicemail messages may constitute "records" under federal and state statutory schemes, including the new Sarbanes-Oxley bill, that require companies to maintain records of certain activities for specific periods of time.
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