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Divorcing in the Digital Age: The Insightful Interplay of Digital Forensics and Family Law

digital forensics and family law

Written By

Michael Neher

Computer forensics and eDiscovery can play an important role in the outcome of your client’s divorce or family law case. An experienced digital forensics partner can help an attorney focus on the specific data that is critical to a dispute, while also looking deeper into metadata, activity logs, and other insights. This blog will provide a basic overview of the possible uses of forensics and eDiscovery in a family law context. 

As with any forensic collection, a digital forensic engagement in a family law matter starts with the identification of relevant sources of data. Common sources of digital evidence in family law cases can include email accounts, cell phones, laptops, and tablets. Our team will assist your client by documenting the collection procedure and placing the data in safekeeping with proper chain of custody, ensuring that all evidence is properly handled and that our forensic analysis stands up in court.

Digital forensic analysis of data can establish indisputable facts in the family law context. Things such as travel and whereabouts can be gleaned from location data, a map application, or even metadata tags associated with images and social media posts. This can be important in cases where there are restrictions on parenting time, such as limitations on taking the children from certain geography. Assets and spending habits can be revealed from financial applications, eCommerce and mobile payment usage, email receipts, and also from location data. This can be important for child support, alimony, and other financial calculations pertinent to your client’s case. 

More salacious factual scenarios that pertain to family disputes are also likely to be found in personal data. In some matters, family disputes can turn on proof of infidelity, addiction, or improper parenting practices. Digital artifacts that could be probative of these behaviors are myriad: individual conversations are preserved in text message history; interests in a particular subject matter or lifestyle will often be preserved in internet history or mobile application use, and; whereabouts during parenting time can be preserved in GPS data and geolocation tags. In the event a case involves domestic abuse or restraining orders, a forensic examination of a cellphone, tablet, or computer can be useful to preserve and present evidence of harassing telephone calls, text messages, emails, messaging apps, media postings, and other modes of improper contact, along with the associated date and time stamps.

Recently, Capsicum has seen several cases in the family realm that go beyond traditional data collection and analysis. Specifically, it is not unusual to see cases where one spouse is believed to have placed spyware or tracking programs on the smartphone or computer of the other. While one spouse is attempting to move forward with their lives, the other is privy to their movements, messages, and data personal accounts. Spyware and digital tracking software can be easily installed on client’s smartphones, however, the same programs can also be easily identified using industry-leading forensic tools with the guidance of a skilled forensic practitioner. 

Any digital forensic analysis involves looking at technical clues in the digital environment in which the electronically stored evidence resides. This involves examining things like metadata (data about a file that does not appear on its face), system caches that contain "working copies" of old files, system logs, and databases that preserve evidence of user activity, artifacts of deleted files, past disk activity, and other types of "under the hood" analysis. Our team can engage with and interpret evidence that cannot be seen on the face of active user files. 

When conducting forensic collections and forensic investigations for family cases, it is essential to ensure that the examination is lawful. This is usually not an issue if the client owns the devices or the accounts at issue or has legitimate access to them. If the devices or accounts are owned by a third party, then it will be necessary either to obtain the consent of the owner or otherwise obtain a court order that authorizes the examination. Another approach is to have the adverse party retain their own forensic expert to find and produce the evidence in accordance with an agreement, or to have a neutral or court-appointed expert be retained on behalf of both parties. At the onset of each new family law case, counsel should interview clients concerning computer use and email accounts to determine if computer forensic examinations would benefit the client.

About Capsicum:
Capsicum was founded in 2000 within the law firm of Pepper Hamilton, LLP. Charged with providing technology consulting support to their clients, we soon realized that the need to understand, collect, and forensically analyze digital data went far beyond what we were handling: We began our journey as general technologists, but quickly became specialists in digital forensics. Our areas of expertise soon evolved and expanded into forensic investigations, cybersecurity, discovery, electronic and paper recovery, security, regulatory compliance, and incident response retainers. In 2002, Capsicum became an independent consulting company that focuses on these core services. Employing high-caliber experts and a unique understanding of data, technology, and the law, we support organizations that need technological proficiency to run their companies and when they come face-to-face with difficult tech, legal, and regulatory situations. Capsicum is headquartered in Philadelphia, PA with offices in New York, Florida, Texas, and California.