Private corporate electronic data can be laid bare in divorce litigation.

• Author: Hunt, Cathy C.
• Position: LAW JOURNAL 2012

Electronic evidence has become the new smoking gun in divorce litigation. Electronic devices such as smart phones, iPads and computers hold a treasure trove of evidence. When an employee or business owner uses a company-owned electronic device or account, the company could find itself on the receiving end of a subpoena requesting emails, texts and company records. In addition, the company might receive a "litigation hold letter" requiring it to take formal steps to preserve certain electronic data relevant to the divorce litigation. The most common data sought are email communications, texts and financial records along with company-owned electronic devices.

Employer's obligation

Because almost all data are now maintained and transmitted electronically, divorce lawyers are routinely demanding electronic files be produced during the pretrial discovery process and requesting that data on electronic devices be copied to preserve evidence. In 2006, new federal laws included the discovery of electronic evidence in litigated cases. Last year, North Carolina adopted laws to regulate the preservation and production of electronic discovery including the cost and burden of extracting, preserving and producing electronic files.

When a company receives a subpoena requesting corporate information in a divorce case, its first reaction usually is to object to producing the information. However, either one of the divorcing parties can seek to join a company as a party to the lawsuit so the court will have jurisdiction to order a company to take actions such as producing emails or electronically kept financial data. A number of state and federal judges have imposed severe penalties on corporate litigants that did not comply with preserving and producing electronically stored information. Even if a company is not made a party to a lawsuit, if it receives a subpoena, it is required to produce what is requested unless a court orders otherwise. Failure to do so can result in severe penalties.

It is important for a company to ensure that it fully understands its legal obligation to preserve and produce electronic evidence. This is an emerging area of law, and a corporation's obligation under the law is changing frequently. Smaller companies tend to be more informal in their policies and procedures. The law applies equally to large and small companies. However, a court may order that the cost and burden of preserving and producing certain requested electronic...