Transcript National Business Institute Presents:

National Business
Institute Presents:
FAMILY LAW FROM A-Z
Tampa, Florida - December 05, 2014
PRESENTED BY:
III. DISCOVERY IN DIVORCE
A. SOCIAL MEDIA TIPS AND TRICKS:
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Discovery in the year 2014 is much different than it was in the 1990’s and 2000’s with the advent
of Social Media (Facebook, Twitter, Google, Instagram, Flickr, etc.). The clients today are very
aware of who is posting what, where they are posting it and how to get to it for us, so we can
showcase and provide to our Family Law Judges. Posting pictures on a person’s social media
account can have a meaningful impact on a “Time-Sharing” proceeding and/or “Financial Relief”
hearing:
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“Angry” postings regarding the other parent
Photographs showing illegal “drug” use
Adultery supporting an “alimony” claim
Membership to a “dating” website
“Booking” photograph of other parent
“Vacation” postings of other parent
Husband’s Time-sharing Exhibit
#1: Who Wins?
Wife’s Child Support Exhibit
#2: Who Wins?
• At the retainer conference, or soon thereafter, the attorney should
advise the client of the possibility of any posting on Social Media
sites that could and probably will be used at any Court proceeding.
Some helpful suggestions may be as follows:
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Privacy settings on your account
Removing “mutual” friends and your “spouse” entirely
Shutting down your Facebook page
Not joining any new dating sites
No “drunk” postings and/or pictures
“Incriminating” digital pictures on hard drive
On the other hand, continued access to the Social Media postings of
the other party can be very valuable to your case. If the information has
been obtained through informal means (i.e., mutual friend is still
“friended” on the account, or, just blatant “stupid” postings), there is still
the matter of authenticating the information through either a Deposition
or Request for Admissions.
The same holds true for emails and/or texts messages sent from the
other party. Again, it may be necessary to authenticate the emails
and/or text messages during discovery by asking the other party to
verify their email/IP address and/or cell phone number. Further, do not
assume “damaging” postings will be available for extended periods of
time. Once a posting/picture is deleted, it may be necessary to retain
an expert to conduct a forensic exam of the party’s computer hard
drive.
Florida Evidence Code: §90.901- 90.954 Requirement of
authentication or identification. —Authentication or identification of
evidence is required as a condition precedent to its admissibility. The
requirements of this section are satisfied by evidence sufficient to
support a finding that the matter in question is what its proponent
claims. See Mills v. Barker, 664 So.2d 1054 (Fla. 2d DCA 1995).
►Practice Tip: When introducing “screenshots” into evidence, be sure
to ask whether the identifying witness has altered the evidence in any
way through any type of software or digital enhancement program.
B. DISCOVERY OF ELECTRONIC
COMMUNICATIONS:
Your client notifies you that they have
“emails” from the Spouse that includes
damaging evidence regarding their
“funneling” of marital income/assets into
hidden clandestine off-shore accounts.
Or, they have electronic communication
they intercepted through some type of
‘spyware’ program proving an affair has
been on-going for some time. Or, worst of
all, they have “G-Mail” communication
between their spouse and his or her
respective attorney detailing the strategy
of their procedural move at the next court
hearing? What do you do as the upstanding, ethical attorney in these
scenarios?
A good starting point is to NOT review any
such electronic communication until you first
determine if there is potentially a crime
being committed by your client. After you
have vetted this information from your client,
then you might want to examine Chapter
§934.03, Fla. Stat. and determine if such
electronic
communication
was
ever
intercepted and/or stored in order to trigger
the statute. If so, it is probably not going to
be admissible:
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Chapter §934.03 Interception and disclosure of wire, oral, or electronic
communications prohibited.—
(1) Except as otherwise specifically provided in this chapter, any person who:
(a) Intentionally intercepts, endeavors to intercept, or procures any other
person to intercept or endeavor to intercept any wire, oral, or electronic
communication;
(b) Intentionally uses, endeavors to use, or procures any other person to use
or endeavor to use any electronic, mechanical, or other device to intercept any
oral communication when:
1. Such device is affixed to, or otherwise transmits a signal through, a wire,
cable, or other like connection used in wire communication; or
2. Such device transmits communications by radio or interferes with the
transmission of such communication;
(c) Intentionally discloses, or endeavors to disclose, to any other person the
contents of any wire, oral, or electronic communication, knowing or having
reason to know that the information was obtained through the interception of a
wire, oral, or electronic communication in violation of this subsection;
(d) Intentionally uses, or endeavors to use, the contents of any wire, oral, or
electronic communication, knowing or having reason to know that the
information was obtained through the interception of a wire, oral, or electronic
communication in violation of this subsection; or
In order to avoid any Chapter §934.03 consequences,
there are other options available to the attorney
seeking to obtain electronic communications as
follows:
1. Requesting any and all emails, texts, and/or electronic communication for
a certain time period from the other party through a Request to Produce,
Subpoena Duces Tecum, or Notice to Produce at Hearing (may need to
include email/IP addresses, cell phone # numbers, or G-Mail accounts).
See Fla. R. Civ. Pro. 1.350 (includes electronically stored information).
2. Requesting any and all emails, texts, and/or electronic communication for
a certain, narrow time period for a Third Party and/or Expert through the
issuance of a Non-Party Subpoena per Fla. R. Civ. Pro. 1.140 (which
includes “electronically stored information”) and Fla. R. Civ. Pro. 1.390 as
follows:
Expert Exhibit “A”
Copies of any and all electronically stored data, records, documents, notes,
summaries, testing, testing protocols and testing results, interviews used or relied
upon for any testimony by you, recommendations, reports or summaries,
electronically stored bills, invoices, or other accounting records or documents
regularly relied upon and used by your business, regarding the above parties and
the minor children, to wit: A.A.A. born 2004 and B.B.B. born 2007.
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►Practice Tip: If you are the Respondent, think of filing a Motion for
Order of Protection, Motion to Quash/Strike, and/or Objection based
on confidentiality per the Health Insurance Portability and
Accountability Act of 1996 ("HIPAA"), Trade Secrets, Husband-Wife
Privilege per §90.504, Fla. Stat. (Communication defined???) or a
Defense based on Fla. R. Civ. Pro. 1.380(e) which states:
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(e) Electronically Stored Information; Sanctions for Failure to
Preserve. Absent exceptional circumstances, a Court may not impose
sanctions under these rules on a party for failing to provide electronically
stored information lost as a result of the routine, good faith operation of an
electronic information system.
3.
Requesting that the Court direct the Spouse to provide an
authorization to any of the Social Media Sites, again, assuming that you
are able to narrow the time frame and the recipients of the emails. Or,
subpoenaing the “G-Mail” records from Google. However, there are both
state and federal laws which prohibit a communications company from
divulging the contents of the electronic communication carried, stored of
maintained in electronic storage. There are some useful exceptions to
these statutes where there is consent by the user or a Court Order:
See 18 U.S. Code § 2703 - Required disclosure of customer communications
or records:
Contents of Wire or Electronic Communications in Electronic Storage.— A
governmental entity may require the disclosure by a provider of electronic communication
service of the contents of a wire or electronic communication, that is in electronic storage
in an electronic communications system for one hundred and eighty days or less, only
pursuant to a warrant issued using the procedures described in the Federal Rules of
Criminal Procedure (or, in the case of a State court, issued using State warrant
procedures) by a court of competent jurisdiction. A governmental entity may require the
disclosure by a provider of electronic communications services of the contents of a wire
or electronic communication that has been in electronic storage in an electronic
communications system for more than one hundred and eighty days by the means
available under subsection (b) of this section.
LOCATING HIDDEN ASSETS:
D. LOCATING HIDDEN ASSETS:
While there is no sure-proof method to ensure that all marital assets
and/or streams of income will be disclosed by the other party, the request
and review of certain documents will enhance the probability of
discovering any undisclosed assets. The four things you want be looking
for are: Hidden Income, Hidden Assets, Adjustments related to Business
Valuation, and Dissipation/Waste. Alternatively, the engagement of a
Forensic CPA to provide the attorney with a complete list of documents
that are missing from the other party. They can also be very beneficial as
a way to provide a tracing of “Hidden Assets” and where they may have
gone????
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Tax Returns usually are the starting point in a Hidden Asset Discovery
request. For example, something may just look wrong on the tax returns
themselves. The tax returns may disagree with the parties’ Financial
Affidavit. Or, the parties’ lifestyle may not agree with the tax returns. The
attorney will need to request a copy of the other party’s tax returns from the
IRS itself, from the Accounting Firm/CPA that produced the returns, or, from
the opposing party in hopes that they will provide as much supporting
documentation as possible. Don’t forget about checking with the Florida
Department of State for the listing of active and inactive Corporations,
Businesses, or LLC’s of the other party. http://dos.myflorida.com/
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Checking and Saving Account Statements are also a valuable resource
in determining the existence of any possible marital assets. A request for an
explanation of unaccounted for deposits, distributions or transfer into or out
of a checking/saving/money market account may lead to the discovery of
previously undisclosed marital assets. Especially when you see transfers to
Account No.: XXXX1234 that was not previously disclosed.
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Retirement or Other Deferred Compensation Benefits available to the
employee spouse may not always be known by your client, the nonemployee souse. A ‘red flag’ that should go up is when you see an entry on
the party’s Financial Affidavit for “Monthly pension, retirement, or annuity
payments” or under “Monthly mandatory retirement payment.” Also, be sure
to check the “Asset” section of the Financial Affidavit under the “Retirement
Plans” section. Don’t forget about “Business interests” as those are
commonly either omitted or left as “TBD.” Thus, the attorney may want to
issue a Non-Party subpoena directly to the source to obtain such
documents.
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Inspection of Land is also another discovery approach if you are able to
obtain a Court Order allowing such entry. See Fla. R. Civ. Pro. 1.350(a).
This may apply if the client believes that may be certain tangible assets
hidden away and locked behind closed doors. Don’t forget to bring a digital
camera or hire a private investigator to document your guided tour.
►Practice Tip: When handling Military Dissolutions be sure to
request the balances on Thrift Savings Plans (“T.S.P.”), the
existence of the Survivor Benefit Plan (“S.B.P.”) and the valuation
of service member’s Military Pension/Disposable Retired or
Retainer Pay. §61.075(a)(1) states as follows: “Marital assets and
liabilities” include: (d.) All vested and non-vested benefits, rights,
and funds accrued during the marriage in retirement, pension,
profit-sharing, annuity, deferred compensation, and insurance
plans and programs. Another helpful list to check may include:
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Money Market or Flex Line Accounts;
HELOC’s and Lines of Credit;
Florida Retirement System (F.R.S.);
City Pensions;
Pay Pal Accounts;
QuickBooks or P& L Reports;
A/R Reports;
Personal Use Assets on Tax Returns;
Asset Checks; and
Receipt Books
E. MODEL LETTERS AND MOTIONS
(WITH SAMPLE FORMS)
1.
2.
3.
4.
5.
The Good Faith Letter – Exhibit “A”
The Motion to Compel – Exhibit “B”
The Motion for Protective Order – Exhibit “C”
The Motion to Quash Subpoena – Exhibit “D”
The Motion to Strike and Request for Sanctions –
Exhibit “E”
Question: What form of Social Media evidence has the most effective impact on the
Court?
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B.
C.
D.
E.
Emails
Text Messages
Facebook Screenshots
Digital/Audio Recordings of the party
All of the above
Question: At what point in litigation is the best time to conduct discovery?
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B.
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D.
E.
Before Mediation
After Mediation
After Case Management Conference
After Pre-Trial Conference
All of the Above
Question: What is the most under-utilized discovery method?
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B.
C.
D.
E.
Request to Produce
Interrogatories
Request for Admissions
Non-Party Subpoenas
None of the Above
Question: What is the best evidence to show to the Court the other party’s increase in
income?
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B.
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E.
Financial Affidavit
Paycheck Stubs
Bank Deposit Balance Statements
Tax Returns
None of the above
F. DISCOVERY ABUSES AND
REMEDIES:
Discovery Abuses basically occur in the following forms: A. Overly burdensome
requests; B. Unnecessary requests; C. Failure to respond; or D. Incomplete
responses. Some examples of these may include:
1. Overly Burdensome Requests – A Request to Produce that requests copies of
the last ten (10) years of tax returns of the Respondent when the action was filed
six (6) months ago alleging a decrease in income.
2. Unnecessary Requests – A Request to Produce that requests copies of the last
five (5) years of utility bills of the Respondent where neither party is making a
claim for alimony.
3. Failure to Respond – One of the parties either does not produce some of the
requested documents, or even worse, does not provide your office an
explanation why certain documents were not provided.
4. Incomplete Responses – One of the parties just flat out does not answer a
good portion of the sub parts contained in the Standard Family Law
Interrogatories.
If any of the above is your Discovery situation, there are various Remedies,
including Sanctions, available to you through the Courts. The proper remedy to address
overly burdensome or unnecessary discovery requests is a Motion for Order of
Protection. Typically, the attorney is asking the Court to restrict a portion of the
discovery as compared to a request to forbid all discovery that is being requested. Once
filed and served on the opposing party, the motion suspends discovery until the motion is
determined. Sanctions may include an award of reasonable costs and attorney’s fees for
bringing and subsequent hearing time on the motion.
If your Discovery violation involves the failure to respond of incomplete
responses situation, the attorney should consider the filing of a Motion for Order to
Compel pursuant to Fla. R. Civ. Pro. 1.380(a). This will require a detailed, specific list of
the documents and/ or records which you are asking the Court to require the other side to
produce. It always a good idea to attach the initial discovery request as an “Exhibit” so
the Court can go down the list at the subsequent hearing and determine which
documents will be relevant and ordered to be produced. Further, request a date certain in
the motion by which to produce the documents and/or records, or, have a proposed
Order with you at the evidentiary hearing. Compare Fla. R. Civ. Pro. 1.380(a) with
Administrative Order S-2013-075(12)(D)(i) for the Certificate of Discussion requirement
(the attorney has conferred or attempted to confer vs. the attorney has discussed). If your
motion is granted, you will be able to obtain your reasonable attorney’s fees and costs
against the opposing party as a Sanction.
►Practice Tip: Before filing and serving a Motion for Order to Compel on
the opposing party, send a five (5) day “Good Faith” letter memorializing your
desire to resolve this matter short of having a hearing. Be sure to attach it to your
motion to satisfy the Certificate of Discussion requirement. Then, call the
opposing party to discuss the matter in case you are questioned at the hearing
regarding that procedural requirement.
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If you are propounded with Standard Family Law Interrogatories that seem
unusually lengthy, be sure to count the number of “Rogs”, including the sub-parts, to
make sure they don’t exceed the limit of thirty (30). If they do, then file your motion
and request attorney’s fees and costs. See Fla. R. Civ. Pro. 1.340(a).
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You may also find yourself in a Deposition Format whereby the opposing party
and/or attorney is conducting the deposition in bad faith, or, asking questions of your
client that tend to annoy, embarrass, or oppress the deponent. If that is your
Discovery situation, provide a first ‘warning’ to the opposing party to cure the situation
and move onto a different subject matter. If the opposing party insists upon staying
on that particular subject matter, then make an ‘ore tenus’ motion to terminate the
deposition and follow it up with a written Motion for Order of Protection, requesting
your attorney’s fees and costs for the bringing of the motion. See Fla. R. Civ. Pro.
1.310(d).
PRESENTED BY: