The Awesome Power of ESI

Electronic communications, including social media, can be extremely powerful tools in a litigation and, concomitantly, the wrongful loss or destruction of such electronically stored information (ESI) can be equally as devastating in a legal dispute. Recently, in Crocker C. v Anne R.,¹ a “war of the roses” custody battle, the incredible power of digital evidence, if obtained in accordance with law, was underscored where a wife accused her husband of installing a spyware application on her iPhone to surreptitiously monitor and record non-telephonic conversations she had with others, including with her attorney and psychiatrist, track her whereabouts, and “steal” her passwords to gain access to her other electronic communications. In Matter of J.T.,² the court harnessed the benefits and power of email communication and authorized the service of process by email in a proceeding seeking to terminate parental rights. Lastly, in connection with a spoliation motion, in Oorah v Covista Communications,³ the court addressed the disastrous implication of a defendant which sold its assets, including its computer servers containing responsive ESI, during the pendency of a litigation without having first preserved such ESI.

In Crocker, a wife sought to compel her husband to disclose spyware used and/or purchased by him or on his behalf including evidence of “actual utilization, what he learned or recorded, the people he shared the information with as well as all other relevant and material information.” The spyware allegedly installed on the wife’s iPhone:

• could turn her iPhone into an open microphone allowing the husband to surreptitiously eavesdrop on room conversations and record them;

• could monitor her emails, texts, telephone calls and physical location using the GPS feature of the iPhone and it would create detailed log files on her iPhone showing when the open microphone and other features were in use to, among other things, purposefully listen in on specific conversations;

• has GPS features which would enable the husband to monitor and remotely turn on the feature permitting him to listen to and record conversations so that he could pin-point when and where those conversations had taken place;

• would allow the husband to have access to his wife’s calendar, GPS location and the open microphone so he could cross-reference her location, calendared activities and meetings; and

• would allow the husband to, in effect, “steal” the wife’s passwords using the keystroke recording feature permitting the husband access to all of his wife’s password protected accounts, including her email, and thereby be able to log into his wife’s emails and gain access to her confidential or privileged communications.