Destruction & Discovery of Electronically Stored Information
In order to present a case in Court you need proof of your facts. This proof comes in the form of testimony from witnesses or documents. Historically, documents meant tangible items and paper files. That definition of ‘documents’ has evolved to include the electronic versions of the same documents, such as downloaded statements from financial institutions.
Today, not only can the electronic version of documents be discovered, but files that exist primarily in electronic form, such as draft Word documents, e-mails and text messages, and even social media profiles can all be collected and possibly used as proof.
In today’s world of technology, even the most innocent Word document can contain interesting pieces of information. For example, say one spouse types a letter to the other detailing her desires for a divorce, prints it, and gives it to her husband. Husband will almost surely bring that hard copy of the letter when meeting with an attorney, but the electronic copy can say so much more than just the words written by the wife. For example, a document’s metadata can provide information such as when the letter was first created, how many versions there were, and how long was spent editing the letter, and much more. Additionally, hard drives can store old versions of documents that can also provide more information. Moreover, sites such as Facebook, Instagram, and YouTube can all be captured and copied to reflect a single moment in time, including comments, posts, ‘likes’, photographs, and private messages.
How does this impact the ‘average’ family law case participant? With the changes in technology and the ease of simply hitting the “delete” button, the Maryland legislature passed a law to preserve these documents and pieces of information. Once it is reasonably likely that the matter will go to litigation and such information might be relevant to a court proceeding, none of it can be deleted. That means that regularly scheduled erasures of computers should be stopped, and when cell phones are upgraded, the old phone must be kept.
To be clear, however, this does not mean that junk mail must be kept – the law requiring the maintenance of documents only applies to information that might be relevant to the case. This applies also to hardware that the documents can be stored on, such as computers, phones, tablets and flash drives, even if they are broken or have been replaced. The Court can impose severe penalties for the destruction of evidence or potential evidence, so if in doubt, keep it and ask your lawyer.
