Computer Forensics & An Asset Search
The divorcing spouse was suspected of hiding marital assets, and his / her personal computer may have contained undisclosed financial information. The divorcing spouse had even removed the personal computer from the marital residence in anticipation of the divorce. In the foregoing situation, a forensic examination of the divorcing spouse's computer might possibly help.
Yesterday, I spoke with Peter J. Theobald, who is a forensic computer examiner with Klein Liebman & Gresen, LLC. Mr. Theobald explained that he could search a computer for active data, archived data and deleted data. He further stated that once given physical access to a computer, he might find stored information about:
- Personal & Business Finances
- Purchases
- Appointments, Calendars & Contacts
- Communications
- Relationships
This means that a forensic computer examiner could elicit information about suspected hidden assets, such as bank account numbers or the names of nominees, high-risk geographical locations, shell companies, etc. If such information were discovered, it might then be used to impeach an opposing party at a deposition or trial. It could also be provided to investigators as the leads to be followed in an asset search.
Fed. R. Civ. P. 26 (a) (1) (A) (ii) & (b) (2) (B), cover the circumstances electronically stored information may be disclosed / forensically examined during federal litigation. Pursuant to Federal Rule 26, a litigant may also seek the stored information in an opposing party's digital camera, cell phone, personal digital assistant or global positioning system. Electronically stored information might also sometimes be "material and necessary" under New York law, and therefore disclosed pursuant to N.Y. Civ. Prac. L. & R. § 3101:
"§ 3101. Scope of disclosure. (a) Generally. There shall be full
disclosure of all matter material and necessary in the prosecution or
defense of an action, regardless of the burden of proof, by:
(1) a party, or the officer, director, member, agent or employee of a
party;..."
In Etzion v. Etzion 2008 NY Slip Op 50475(U) (Nassau Sup. Ct. 2008) however, the Court mentioned N.Y. Civ. Prac. L. & R. § 3101(a), but then denied an ex-wife plaintiff electronic discovery of her ex-husband's computers. Although the Court denied the ex-wife's discovery request under the particular facts of Etzion, the Etzion decision provides an example of the kind of computer information a litigant might ideally seek from an opposing party.
Copyright 2008 Fred L. Abrams
