The 1989 dark comedy The War of the Roses with Michael Douglas and Kathleen Turner had the tagline “Once in a lifetime comes a motion picture that makes you feel like falling in love all over again. This is not that movie.”  Needless to say, getting divorced can sometimes feel like going to war.  And, when it comes to electronically stored information (ESI) presented to the court, not all wars are fought fairly.

In an article in The Recorder (Deep Fakes in Divorce Court: Manipulated Electronic Evidence and What to Do About It, written by M. Jude Egan; hat tip to Sharon Nelson’s excellent Ride the Lightning blog for the coverage as well), the author recounts several instances where electronic evidence is either fabricated or at least subject to misinterpreted in divorce proceedings.  Here are two of them:

After a husband was granted temporary custody of the children when the wife’s boyfriend had been arrested for pretty horrific domestic violence in front of the children, the wife responded by filing her own Domestic Violence Restraining Order (DVRO) against the husband and took the kids back from him—now with no visitation pending resolution of the Domestic Violence issues related to the “ominous and deeply threatening” threats in the text messages that she alleged he had sent her.

But, the husband didn’t send them. All the wife needed to do was change the name associated with someone else’s number in her phone to her husband’s name. Then she had whomever owned the phone line send her the threatening text. When she printed the text messages, Husband’s name in her “contacts” list appeared at the top of the screen to make it look like he sent the message.  The hearing on the DVRO ended up continuing for almost four months in total, during which the husband didn’t see the children, despite the court initially awarding the husband full custody of the children because of the violence in the wife’s home. At trial, his monthly statement (showing that he never sent her a single text message on that day or any day in the previous months) proved that the messages were faked. The Judge dismissed the DVRO, but still didn’t award him full custody of the kids.

In another case, the mother looked at a 5-year-old’s iPad and discovered photos of Father nude and engaged in sex acts. She filed these photos into a Child Welfare Services case and ultimately law enforcement got involved. Family court made a finding (without evidence, because the mother didn’t have a lawyer) that the photos had been faked and ordered that the children live with the father. It took almost six months to get the iPad out of an evidence locker at the police department and into the hands of a forensic computer expert. It turns out that no one put the photos on the iPad, they synced and downloaded automatically from the father’s iCloud.

These and other examples illustrate how electronic evidence and the source of that evidence can be easily faked or misinterpreted.  The author also points out how important video evidence in divorce cases these days with regular video evidence being considered from smart phones (as we saw in the highly public case between Johnny Depp and Amber Heard), security camera systems and social media.  Again, it continues to get simpler to manipulate video evidence, which often requires a transcript of the video to be submitted into evidence.  The author recommends that “[p]arties relying on unmanipulated electronic evidence should provide as much corroborating evidence as possible”.  I agree wholeheartedly with that, not only for your evidence, but also to refute evidence from the opposition as well and forensic analysis should be routinely a regular component of that corroborating or refuting evidence.

Speaking of Ride the Lightning, Sharon also covers perhaps the worst Zoom fail I’ve seen yet – a Pittsburgh school board member forgetting that the camera is on and taking a shower during a meeting with the public.  Whoops.

Also, just a reminder that, next Wednesday, September 2nd, at noon ET (11:00am CT, 9:00am PT) our EDRM September monthly webinar of cases covered by the eDiscovery Today blog will discuss cases related to cooperation disputes, including disputes related to in camera review, boilerplate objections, forensic analysis and search terms and more!  And, it includes Tom O’Connor (Director of the Gulf Legal Technology Center), Mary Mack (CEO and Chief Legal Technologist of EDRM) and Craig Ball, President of Craig D. Ball, P.C.!  Click here to register – don’t miss it!

So, what do you think?  How often do you use forensic services to corroborate or refute electronic evidence?   Please share any comments you might have or if you’d like to know more about a particular topic.

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Disclaimer: The views represented herein are exclusively the views of the authors and speakers themselves, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.