A Preemptive Strike to Obtain Electronic Evidence Is Essential

to Preserve Financial Proof in Divorce Litigation

by: Elliot D. Samuelson, Editor

The granting by the courts of liberal discovery of electronic evidence in matrimonial litigation has certainly not kept pace with the sophisticated technology devices that have been developed to make it difficult or impossible to obtain information stored on computer hard drives. In order to prevent erasures or destruction of hard drives that contain essential financial information, it is absolutely essential that the court grant not only ex parte restraining orders but also permit the sheriff’s office to take control of computers both used in the home or in businesses, in order to clone the hard drive. It is only when such preemptive action is requested and granted that data destruction can be obviated.

Once an order to show cause is served on an adverse party, you can rest assured that he or she will take whatever means available to either alter or obliterate any incriminating evidence that may be contained on a computer’s hard drive, or to physically destroy it.

In order to induce the court to grant such drastic remedy, it is important that you lay a comprehensive foundation and obtain the services of a forensic computer expert to submit a supporting affidavit detailing the work that must be done, the time necessary to complete such tasks, and the assurance that the adverse parties’ business will not be disturbed during the cloning process. In this regard, it is most important to convince the court that no prejudice or damage will be sustained by the adverse party and that the hard drive will remain intact. The court must reach the conclusion that the procedure is merely remedial in nature and will do nothing to destroy, alter, or obliterate any of the data contained on the hard drives.

Consider the following fact pattern in determining what legal strategy to employ to make certain that you preserve the financial data contained on a myriad of electronic devices which is necessary to protect your client both in a division of marital property and the award of maintenance and child support. The client discloses to you that he or she believes his or her spouse has diverted monies from the family business to foreign corporations placing the shares in dummies and nominees , and then diverting such monies from such corporations to off shore trusts that are beyond the reach of the New York courts. Armed with such information it is not a leap to judgment to suspect that such spouse will use every methods available to destroy any evidence contained on his or her computers once he or she realizes that his or her spouse has enlisted the aid of the court to obtain such information. This includes a destruction of the computers themselves.

To merely submit an order to show cause requesting that the computers be cloned without asking for interim relief to protect the integrity of such discovery device, would be tantamount to committing a grievous error in the management of your case. That is why it is essential that your order to show cause contain the following decretal paragraphs:

ORDERED, that [Plaintiff ]and\or her authorized computer forensic experts shall impound, clone and inspect the computer servers, hard drives, individual workstation P.C.s, laptops, PDAs, cell phones, smart phones, external hard drives, “thumb” drives, flash drives and other peripheral storage devices, and other items containing digital data, including but not limited to (1) electronic mail, (2) any information in the defendant’s business or personal computer or computer equipment, (3) word processing files, calendars and/or schedules, (4) electronic data containing memory and/or storage devices on standalone microcomputer and/or network workstations, and (5) electronic data contained on network servers, mini computers and mainframe computers in directories or subdirectories, located at [defendant's] residence, business location, and any other locations where it is known that [defendant] or [business] conduct business in New York and may have computers, data storage or computer equipment; and it is further

ORDERED, that [plaintiff] and/or her authorized computer forensic experts gain access into [defendant's] residence located at [address], [business] location at [address] and any of [business'] other New York locations where computers, data storage or computer equipment may be found; and it is further

ORDERED, that deputy sheriffs of the [_______] County Sheriff’s Department shall accompany [plaintiff] and/or her computer forensic experts and take whatever steps are necessary, including but not limited to breaking down, breaking open, searching for, and/or removing any obstacles that may impede such entrance, to ensure that this order of the court is complied with; and it is further

ORDERED, that the [______] County Sheriff’s Department shall be held harmless from any and all liability occasioned from obtaining control of the defendant’s computers or computer equipment and access into [defendant's] residence, [business'] location, and any of [business'] other New York locations where computers or computer equipment may be found; and it is further

ORDERED, that the defendant immediately cease the rotation, alteration and/or destruction of electronic media located at [defendant's] residence, offsite locations, internet and web-based storage locations or any of [business'] locations that may result in an inability to recover (1) electronic mail, (2) any information in the defendant’s business or personal computer or computer equipment, (3) word processing files, calendars and/or schedules, (4) electronic data containing memory and/or storage devices on standalone microcomputer and/or network workstations, and (5) electronic data contained on network servers, mini computers and mainframe computers in directories or subdirectories regarding ______________________, the defendant’s involvement with _____________, persons dealing with ____________________, or any other business interest of the defendant or [business] in ____________________, or any persons or company communicated with regarding all of such entities.

Before drafting the clauses as suggested in this column it is most important to consult with the local sheriff’s office to determine exactly what language they wish to appear in the order to show cause, what fees they require, and the extent of the action that they will take, in order to obtain and preserve the computer hard drives. Each county will differ so it is important not to rely on a previous experience in a bordering county.

In order to assure that the sheriff’s office will fully comply with the court’s direction, it is wise to enlist the services of a private investigator, who will work together with your forensic computer expert and the local sheriff’s office to not only identify the location of the party’s residence and or business but to aid in securing access in order to complete the cloning process.

Once you have carefully drafted your papers and submitted the same to the matrimonial court for signature, it may well be that the interim relief requested with respect to the sheriff obtaining custody of the computers and hard drives may be denied by the court for a variety of reasons. First, the court may refuse to sign the order to show cause without notice to your adversary. It is your job to convince the court that special circumstances exist that warrant no notice be given. This is permitted under 22 NYCRR 202.7 as amended. To give notice, or to simply serve the papers without an interim stay would be fool hearty. Once the adverse party has obtained a copy of the order to show cause without such relief, you can be certain that computers will disappear, or be destroyed, or that one or more “input errors” occurred that caused the computers to crash. Moreover, as suggested above, there are computer programs that can permanently erase all information from a hard drive and make it totally unretrievable even by a forensic expert. Most computer users are unaware that all deleted filed can be detected and recaptured, unless they were deleted by a software program. As such, a computer owner is usually lulled into a false sense of security believing that the information they deleted, can never be recovered!

Now you ask what can be done in such a situation, where the court strikes out your ex parte relief or fails to dispense with the appearance of the adverse attorney.

Your remedy of course would be to bring on a proceeding pursuant to CPLR 5704 for the full court of the appellate division to reinstate all stricken provisions and grant such relief without notice to the adverse party. The application cannot be made before a single judge for the Appellate Division. It is not permissible to do so as a panel must hear the request. When this application is drafted, it gives you a further opportunity to convince the appellate court by affidavit of the extreme need to conceal from the other side the nature of the ex parte relief, and the necessity to impound and clone the delineated information contained on the computers. The law has provision to dispense with notice when applying for an order to show cause in both the supreme and appellate courts, where to do so would render the proceeding nugatory.

With a proper foundation, the appellate courts will readily grant such relief, dispense with an adverse party’s appearance, and reinstate deleted provisions of the order to show cause thereby enabling you to preserve the evidence that is essential to successfully litigating your case.

Without utilizing these procedures, there is no way that you can be certain that you will be able to succeed in the litigation. Not applying to the appellate division to reinstate the stricken provisions would be a mistake.

If after you have made your application to the supreme court and the appellate division and all the relief has still been denied, you have discharged your professional obligation and cannot be later criticized. That is why it is so very important that your papers be complete, comprehensive, and detailed sufficiently for the court to grant the relief you seek.

Even with such failure, there are still other remedies available. If the computer information is altered or destroyed, consider bringing on a cause of action for spoliation of evidence. Moreover, CPLR 3126 imposes civil sanctions against such party from adducing any evidence concerning the spoliated property or information, and will allow the court to draw an unfavorable inference against the spoliator. Yet, there is more. When the court determines that the conduct of the defendant is serious and deliberate, it has the discretion to default the spoliating party and award judgment to the other. In a matrimonial action, it might well mean that a marital asset could be valued solely upon the innocent’s party’s speculations or conjectures as to value. It might also mean that a court could award 100% of the value of such asset to the innocent spouse.

Certainly, in the next case that you are retained, you should utilize these remedies. The rewards may be beyond your expectations.

Elliot D. Samuelson is the senior partner in the Garden City matrimonial law firm of Samuelson, House & Samuelson, LLP and is a past president of the American Academy of Matrimonial Lawyers, New York Chapter and is included in “The Best Lawyers of America” and the “Bar Registry of Preeminent Lawyers in America.” He has appeared on both national and regional television and radio programs, including Larry King Live. Mr. Samuelson can be reached at (516) 294-6666 or info@samuelsonhause.net