Man stealing data from a laptop iStock_000013972877XSmall.jpgIn her June 25, 2010 Shreiber (PDF) decision, Brooklyn Supreme Court Justice Delores Thomas denied a wife’s second motion for the wholesale inspection of her husband’s (previously-secured) computer hard disk drive. A prior motion had been denied as premature and because the activities of the appraiser court-appointed to evaluate the husband’s solo law practice might have rendered such application moot.

However, and despite allegations of fraudulent activities by the wife, the neutral appraiser apparently accepted at face value the husband’s business records, tax returns and statements. The wife had alleged that the husband’s claimed assets at $1.2 million and liabilities of $6.1 million omitted brokerage accounts held in multiple escrow accounts and by non-profit nominees.

Noting the court’s duty to oversee the parties’ full disclosure, Justice Thomas attempted to balance what may be “crucial” electronic discovery with the undue prejudice and delay caused by open-ended discovery.

The court refused to grant unrestricted access. However, granting the wife leave to renew her request, the court mandated the wife submit a “detailed, step-by-step protocol” to protect privileged and private material including provisions for:

  • the appointment of an attorney-referee with computer expertise;
  • the appointment of a forensic computer expert;
  • a confidentiality agreement;
  • examination of the computer for evidence of drive-wiping;
  • a listing of detailed key word searches to be run on discovered files and fragments (e.g., asking for all spreadsheet files would not be acceptable);
  • a review of identified files by the husband’s counsel and creation of a privilege log;
  • preservation of the clone; and
  • payment of costs by the wife.

Justice Thomas is to be congratulated for advancing the adoption of uniform procedures to protect the interests of both spouses. Now Appellate Division Justice Leonard Austin provided similar insights in Lipco v. ASG Consulting (PDF). However, electronic discovery is now needed too often for this to be left to repeated motion practice, case by case, jurisdiction by jurisdiction.

Preservation of computer data should be a part of the “automatic orders” incident to the commencement of every divorce. Every Preliminary Conference should address this issue and the appointment of referees and/or forensic experts considered if appropriate and especially with allegations of fraudulent or “cash” financial activities. A uniform protocol should be established by a panel of lawyers, accountants, computer experts, and judges, easily tailored to the needs of a particular case.

Finally, one cannot help but note that the August 13, 2010 amendment to D.R.L. §237 would appear to eliminate the restraints against “fishing expeditions” resulting from making, as here, the wife pay for the examination of the husband’s computer. With the monied-spouse compelled to pay-as-you-go for litigation fees, what less-monied spouse could resist going through all those computer files.