Technology Intersects with Privacy and Discovery in Divorce Cases

December 21, 2012
By Thomas M. Huguenor on December 21, 2012 8:05 PM |

_DSC0835.JPGDiscovery in divorce litigation can be protracted and difficult, as it may involve the parties' efforts to find "dirt" about each other. New technologies have expanded people's ability to communicate, and accordingly, the number of potential sources for incriminating information in a divorce matter. Communications technologies, like email and social media, are an obvious potential source of discovery. New, "smart" technologies, including not only smartphones but other devices that record and communicate data, are also becoming a frequent subject of discovery requests and subpoenas. As these technologies quickly develop, the usefulness of such data in divorce litigation and other legal matters, especially criminal investigations, must be balanced with privacy rights.

One of the newest innovations are "smart meters," used to measure usage of energy in homes and share data with the utility companies, according to an article this month by National Geographic. Devices like these may one day form part of a "smart grid," which may allow utilities and other industries to meet customers' needs efficiently and respond quickly to outages and other problems. The technology is also controversial, as people may not know exactly what data their device is sending, who may see that data, and how the recipient may use that data. Data on daily energy usage, for example, could easily establish when someone is home or away, and hackers could intercept the data and use it to plan burglaries. A less alarmist view is that the data could also be subject to subpoena during a divorce case, adding a whole new dimension to the type of evidence introduced in a court proceeding.

GPS devices, unlike “smart grid” technology, are already ubiquitous among smartphone users, and they offer a guide to how these technologies could feature in future divorce cases. The Associated Press reported last summer that cell phone service providers received more than one million requests for cell phone data from law enforcement, including location information, details of phone calls, and text messages.

Most cell phones leave a trail of “digital bread crumbs,” including communications with the nearest cell phone tower and GPS location information. In some cases, abusive spouses or partners have used GPS data to locate their victims. So far, service providers have been resistant to providing GPS data directly to users, citing a variety of privacy concerns, so they may also show reticence to provide information to attorneys or divorce litigants without a subpoena. They have, according to research by ProPublica, been less reticent to share such data with law enforcement.

Social media is now a prominent feature in many divorce cases, with litigants requesting copies of social media communications and usage history. A survey of divorces handled by a large law firm in the United Kingdom found that one-third of divorces based on “unreasonable behaviour” made reference to the social media website Facebook as a significant factor. The application of discovery rules to many of these technologies is still a developing area of law, but it seems clear that the rate of change in how spouses gather evidence in divorce cases will continue to quicken.

Thomas Huguenor is a divorce lawyer certified by the State of California. For more than 35 years, he has represented people in San Diego finding their way through the California divorce process. Contact us today online or at (858) 458-9500 to schedule a free and confidential consultation.

More Blog Posts:

Electronic Discovery Helps Find Money Hidden by a Spouse During Divorce, San Diego Divorce Attorney Blog, May 3, 2012

California Loses Storage Devices Holding Personal Information of 800,000 Child Support Obligors, San Diego Divorce Attorney Blog, April 12, 2012

Bigamy Charge Results When Social Media Connects Man's Wife to His Other Wife, San Diego Divorce Attorney Blog, March 29, 2012

Photo credit: Karpati Gabor from morguefile.com.