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Electronic Discovery and Six Steps to Ensuring Your Data is Safe.

bennettlaw • August 6, 2019

Written By: Andrew T. Bennett, Esq.

The world is changing, and the law is not immune. Where love letters and notes to a paramour identified through handwriting were previously a smoking gun; now, IP traces, hardware forensics, and cell phone records have now begun to take their place. Most attorneys in the field will tell you that it takes the law time to catch up with technology but, that is only part of the problem and what do you do until the law catches up? Technology does not stand still, and determinations are made every day that influence the admissibility of certain types of evidence in divorce cases. Be that as it may, a lot of evidence that exists in our digital world is currently untapped. The question is, where do you find the information, even if you do know where to look, can you get to this veritable treasure trove with the bevy of privacy laws that exist in the State of Georgia?

Changes to the Georgia Rules of Evidence have made these items, often procurable through subpoena, a formidable weapon as well as an equally formidable defense in a divorce proceeding where a spouse has been unfaithful. In many instances, this information can be procured and utilized without the costs associated with an Expert. Divorce tends to expose skeletons that exist in both parties’ closets, that is assuming the other party knows the general location of the closet itself.

Everyday there are new messaging applications for Android and Apple phones, social media sites, hook up sites, and other secure platforms that allow individuals to essentially avoid the discovery process altogether. End to End encryption and decentralized servers hosted by private individuals make getting at the information that does exist far more difficult. The perils and costs associated with living in a digital society are numerous and the information that can be gleaned from an individual’s online persona incredibly valuable in a divorce. However, engaging in such discovery can be an exceptionally costly endeavor, especially if your lawyer(s) are not familiar with the technology.

This post seeks to inform you as a user of various programs or sites that your personal information may not be as safe as you believe it to be, especially in a divorce proceeding. There are a few initial points that need to be made that may sound common sense but are often overlooked by parties.

  1. Change your passwords often. This will matter very little if your phone or computer has been infected with Spyware or a key logger as is relatively common. Georgia has several code sections that address these types of invasion of privacy both on the civil and criminal front so taking extreme steps of this nature can result in some pretty significant problems if you are the individual utilizing these methods.
  2. Do not share access to your personal accounts.
  3. Frequently review settings on any sites you use regularly. Now a days many sites and applications share data. The one common site you should be concerned with is Google. It seems that nowadays everyone has a Google® account either as a result of their Android Phone or for the purposes of internet searching, email, and data storage. If you share a computer or phone as a couple, and you have logged into an account there and your password was saved you have essentially given your spouse carte blanc authority to review all sorts of information regardless of privilege or privacy concerns. Some examples include: Web and Application activity, Device information, Voice and Audio Activity, YouTube® watch history, YouTube Search History, even your location history and maps usage. As you think through the bevy of potential applications in your case, it does not take long to recognize that this information can be your savior, or your downfall.
  4. ALWAYS utilize two-factor authentication when available. IF there are other means with which to secure your accounts (some companies
  5. Review devices associated with your social media accounts.
  6. Remove your spouse as a recovery contact on all accounts. Often, during a marriage or a relationship, we utilize our significant other’s phone number or email address as a means to potentially recover and protect our digital accounts. These seemingly innocuous recovery tools have the capability of granting the other party keys to your digital kingdom and with them, potentially evidence that will be used against you to prove a variety of indiscretions that could negatively impact your custody or divorce case.

The facts of each piece of evidence, much like each case, are unique and one minor detail can influence whether evidence will be admissible. It helps if your attorney is well versed in the subject matter at issue in your case, beyond just a general understanding as this will guide them to information that may not otherwise be obtained.

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