eDiscovery Daily Blog

You Almost Can’t Have a Divorce without Smartphone Evidence These Days: eDiscovery Trends

If you think the NSA is tough, hell hath no fury like a suspicious spouse scorned.

According to the American Academy of Matrimonial Lawyers (AAML) – not to be confused with the National Organization of Matrimonial Attorneys Nationwide (or N.O.M.A.N.) from the Coen Brothers movie Intolerable Cruelty (whose motto was “let N.O.M.A.N. put asunder”, get it?) – almost every divorce attorney works with smartphone evidence these days.

According to the AAML survey (press release here), a whopping 97% of members have seen an increase in divorce evidence being taken from smartphones and other wireless devices during the past three years. In addition, an almost universal number of 99% of respondents have cited a rising number of text messages being used in cases, while 67% have noted more evidence being gathered from apps. Not surprisingly, the top three apps for divorce evidence are also the most popular social media sites, with 41% citing Facebook, 17% choosing Twitter, and 16% identifying Instagram as sites where evidence was obtained.

“In the past, a suspicious spouse might have turned to a private investigator for this kind of detailed information, but nowadays most people willingly carry around some kind of wireless tracking device everywhere they go,” said James McLaren, president of the American Academy of Matrimonial Lawyers. “As with almost every aspect of our lives, smart phones and other wireless devices are having a big impact on the ways in which couples divorce.”

Overall, 97% of the attorneys cited an increase in the number of cases using evidence taken from smartphones and other wireless devices during the past three years, while 2% said no change and only 1% noted a decrease. The most common types of evidence gathered were cited by 46% as “texts,” while 30% said “emails,” 12% “phone numbers/call history,” 7% “Internet browsing/searches,” and “GPS” was noted by 4% of the respondents. In total, 99% cited an increase of cases using text messages during the past three years, while 1% noticed no change.

An increase in the number of cases using evidence taken from apps during the past three years was cited by 67% while 28% chose no change, and 5% noted a decrease. In addition to the top three apps listed for divorce evidence, the next selections included Find My iPhone and Snapchat at 6% each, 4% choosing Google Maps, Google+ at 3% and WhatsApp and Tinder each picked by 1% of the respondents.

So, if your divorce attorney is going to nail your spouse’s ass(ets), it will probably be with help from the ESI on his or her smartphone and social media accounts.

Once again, thanks for the tip from Sharon Nelson and her excellent Ride the Lightning blog!

So, what do you think? Do your cases include more ESI from smartphones? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine 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 Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.