ESI 101: A Practical Guide for Electronically Stored Information in a Divorce Proceeding
Recent changes in California law now mandate that parties to a divorce proceeding are required to refrain from destroying or changing any Electronically Stored Information, or ESI for short. So what’s the big deal and why should you keep reading?
Technically, even if you are considering a divorce, you may be subject to comply with these laws. Failure to do so may lead to court imposed penalties for destruction of evidence, and the prohibition of you being able to present certain evidence yourself. This could even result in the court deciding on issues without any input from you or making you pay for the recreation of the lost or damaged ESI. Yikes!!!
Now, the purpose of this blog is certainly not meant to scare you, but it is important to be aware of the requirements so that you are able to defend against the worst case scenario should it arise in the future. What this really means is that during a divorce proceeding, it is imperative that parties conduct themselves in the most transparent of ways as possible, and allowing for any and all ESI to be requested and provided freely.
So what’s ESI you ask? In short, it is anything that leaves an electronic “footprint,” if you will. California law defines ESI as all technology having electrical, digital, magnetic, wireless, optical or electromagnetic capabilities, and electronic information that is stored and transmitted. This means your computers, tablets, cellular phones, e-mail, social networking websites, voicemail, text messages, on-line banking, calendaring and scheduling programs, just to name a few. If you use ANY of these, this is considered ESI, and subject to discovery during your proceeding.
Until you reach final judgment in your case, it is imperative to retain ESI- that means don’t destroy, delete, trade in, or throw away any devices that may hold ESI. Devices that suffer a hardware crash or defect also need to be retained; there are ways to retrieve that data even from broken devices.
Some other tips for managing ESI during your divorce:
- DO: Designate a personal e-mail address for communications to and from your attorney. This communication is privileged, meaning it is confidential.
- DON’T: Communicate with your attorney through an e-mail address provided by your employer. Work provided e-mail addresses are technically the property of your employer, meaning that it is discoverable and not confidential.
- DO: Change all passwords for all online accounts and physical devices.
- DON’T: Post on any social media about your spouse, children, or status of your divorce.
- DO: If in doubt, don’t delete.
- DON’T: Get rid of your cell-phone, even if you are upgrading to a new device. You can get a new phone if you wish, just keep your old one.
In conclusion, it is your attorney’s duty to inform you of your responsibilities with regards to ESI, but it is up to you to comply. The more in tune you are with ESI, the better your chances are at coming to a resolution in your divorce that won’t come back to bite you.