The digital age has exponentially increased the divorce lawyer’s capacity (and obligation) to gather factual evidence. We now have social media websites, and various other forms of computer-related research information at our fingertips. Credit information; litigation records; banking information; and a wealth of additional information about virtually aspect of the life of every witness can now be obtained without the expense of dispatching a team of investigators. Nearly everyone now has a Facebook page. Many people Tweet, or post comments and images on web sites. The lawyer must must master the skills of utilizing social media to know what the evidence against the client will be in the courtroom, and to go on the offensive.
The personal statements that people post on their Facebook pages, their Twitter accounts, or elsewhere on the Internet may be used to impeach their credibility. In a recent case a spouse seeking child custody was confronted with embarrassing posts on social media. In high asset cases and where child custody is contested, the importance of digital evidence is critical.
In New York state courts, CPLR Section 4532 has long authorized the receipt of newspapers or periodicals of general circulation. New York CPLR Rule 4518 which sets forth our evidentiary business records rule includes “electronic records” as defined in New York Technology Law Section 302. Now that over 90 per cent of all printed information is generated on the Internet or digitally, we do not necessarily have a hard copy of the kind of original entry in a company’s records that would traditionally have been considered required to render evidence reliable enough to be accepted in a courtroom. More and more, like other jurisdictions, the New York trend has been away from requiring or even considering the original business entry, whether manual or digital, as the predicate for proof of a fact in a court of law. Indeed one of the more significant New York statutory amendments concerns New York CPLR 3122-a as it pertains to business records, which may be now introduced at trial with or without a prior subpoena, so long as the production is accompanied by a certification, sworn in the form of an affidavit and subscribed by the custodian or other and notice is given at least 30 days prior to the trial. The statute expressly provides that business records so certified shall be deemed to have satisfied the requirements of CPLR Rule 4518. At least one appellate court has held that e signed documents are admissable in evidence. Martin v. Portexit Corp., 98 A.D.3d 63, 948 N.Y.S.2d 21, 2012 N.Y. Slip Op. 05088 (N.Y.A.D. 1 Dept., 2012).
The lesson for the divorcing spouse is that less is more. You cannot put the genie back in the bottle and erase what is already out there on the internet. But you can close the spigot and exercise discretion when the divorce is on the horizon.
The lesson is clear: For the lawyer who aspires to resolve contested issues to her or his client’s advantage it is critical, indeed essential, to master the skills of gathering internet based evidence and knowing how to present that evidence in the courtroom.