eDiscovery Overkill in Family Law Cases

eDiscovery Overkill in Family Law Cases

eDiscovery Overkill in Family Law Cases 150 150 nextpointguest

Nextpoint Guest Post

GUEST POST BY: Sharon Nelson + John Simek


Like a lot of small computer forensics companies, about 25 percent of our cases involve family law. Emotions often run high in family law matters, especially when adultery is a factor (and it is almost always present).

Regardless of who is cheating, the aggrieved spouse is generally some unhappy combination of angry, sad and bitter. As people increasingly live their lives online, especially with the advent of social media, the amount of discoverable data has exploded. Unfortunately, the concept of proportionality in eDiscovery just goes out the window when parties are emotional. The tendency is to want to “nail” the cheater, to unearth every last e-mail, incriminating Facebook photo or posting, and text message.

Facebook passwords in divorce law

The issues that supersede money are often child custody and visitation rights. If one parent truly shouldn’t have custody or should have only supervised visitation, we understand that spouses will want to spend whatever is necessary to obtain proof. Alcoholism, drug addiction, violence, pornography, gambling, dissipation of assets–all of these have a bearing on custody and visitation. While some people try to prove these things when they do not exist, it is understandable that folks are willing to spend whatever money is needed to get solid proof.
If the question is just allocating property, attorneys and experts can play a helpful role in diffusing emotions and helping parties, especially parties of modest means, to understand that eDiscovery should be proportional to the assets involved in the case. Most experts and attorneys do attempt to do this, though there are always some who are happy to gin up the passions and thereby make more money out of the ensuing battles.
The old adage “the customer is always right” is often ironic. So sometimes, we have to take the instructions of our clients (or attorneys) when they make little sense. There is little experts can do (after tendering good advice) except shake their heads and follow orders.

The husband and wife team of Sharon Nelson and John Simek are frequent speakers and commentators on eDiscovery issues at national conferences and events. Sharon is the President of Sensei Enterprises, where she has worked on the front lines of computer forensics and eDiscovery issues, which she also blogs about at Ride the Lightning. John is the Vice President of Sensei Enterprises and is a nationally known testifying expert in computer forensic issues.