With the multiple devices used by families, from smartphones to laptops to tablets, as well as the many storage options available for the information transmitted through and accessed by those devices, managing issues relating to electronically stored information (ESI) is an important part of family law practice.

Most practitioners have had experience with a client who has obtained an email or a text message showing that her spouse is having an affair, or a client who is convinced that the smoking gun that will prove that his spouse is secreting funds and hiding assets is available on her computer.

In instances where a client has obtained ESI directly—e.g., emails, photos, text messages—or has obtained a device containing ESI—e.g., a computer—the analysis for whether and to what extent the client is permitted to use such ESI in a divorce case hinges on whether the client had legitimate access to the device, its contents and/or the account from which the information was retrieved. These situations are distinguished from cases like Schrieber v. Schrieber, 904 N.Y.S.2d 886 (Kings Cty. 2010) and Etzion v. Etzion, 796 N.Y.S.2d 844 (Nassau Cty. 2005), which provide the protocol for seeking ESI through discovery. Instead, clients who have obtained ESI are not requesting the production of information through discovery, but are seeking to present to the court information that they have obtained through another means.