Few technological advancements or social movements have impacted matrimonial law as profoundly as the computer/electronic age. Today, litigants have a virtual Pandora’s box of incredibly vast yet retrievable information at their fingertips, which all too often remains underutilized or undiscovered.
Currently, stored data can be retrieved from joint marital assets such as computers, cell phones or even facsimile devices with memory capabilities. The information stems from usage, whether explicitly "saved" by the computer operator or not. It can later be deciphered or interpreted by a trained professional and can yield countless bits of information to assist in discovery.
Furthermore, it is extremely difficult to wipe clean or erase hard drives and other comparable data retention devices, a fact which has created a niche for data forensics in the ever expanding and changing contemporary computing environment. Trained professionals can often delve deep into the layers of electronic data contained on a litigant’s hard drive or data storage device in a process that is akin to a modern-day electronic archeological dig.
We, as matrimonial attorneys, can utilize data mining or data forensics to strengthen the knowledge and understanding we have of both our adversary and our clients, thus leading us to the best strategic roadmap or overall plan for success. This two-part article will explore some of the issues involved in data mining.
DATA RETRIEVAL IN PENDING MATRIMONIAL ACTIONS
There are countless leads and possibilities that can be pursued by the data recovery specialist in attempting to retrieve data from a computer system. Data mining is a general term that describes a wide spectrum of data recovery procedures.
The broad definition includes mathematical pursuits of trends on large mainframes but can also be used to describe retrieval of common e-mails or financial activity. Interestingly, in the pursuit of the most useful matrimonial litigation data, it is best to focus on certain key or primary areas of interest.
Initially, it is best to advise potential clients or new litigants that they should immediately attempt to procure the marital or family computer device. Next, clients should stipulate that upon initial separation the electronic device should be retained by the client as a pendente lite allocation of personal property.
Finally, use of the device should be discontinued if possible and the client should retain a qualified data recovery specialist who is capable of compiling and supporting a report expeditiously.
Consequently, whichever party is in initial possession of the marital computing device or communication mechanism with storage capability should take immediate steps to secure all data and allow for a swift transfer to a data procurement specialist. It may not seem to be an instinctive instruction that you, as a matrimonial attorney, would give to your client.
Each year, however, society becomes more and more dependent upon computerized communication and computerized business/banking devices, and it is necessary to adapt to the changes engendered by this dependence. It is especially important in cases in which substantial assets are evident — and the parties are openly hostile — to insure that your client makes every effort to secure any electronic devices that could be mined for data.
PARAMETERS OF DATA MINING
Data mining, or data forensics, are generally defined as a Knowledge Discovery or Recovery term for the overall retrieval of information from various types of databases (KDD). The procedure usually involves searching large stores of data for particular repetitive patterns or keyword recognitions.
For purposes of this article and our limited technological requirements as matrimonial attorneys, data mining is essentially a service or profession built upon the sorting, retrieval and organization of existing information.
Recognized professionals and experienced operators in the field of data mining can be incredibly adept at retrieving significant amounts of relevant information for matrimonial litigants. This retrieval is especially useful when one party is primarily responsible for asset management, bill paying and monthly financial reconciliations during the marriage.
The most common and useful areas of data recovery currently utilized by matrimonial attorneys have proven to be: 1) the utilization or existence of previously unknown or multiple e-mail accounts; 2) inappropriate files accessed during unusual times; 3) reflective or proprietary keyword analysis; 4) detection of matrimonial legal advice research; and 5) financial dealings or transactions of the parties.
Incidentally, every data recovery specialist differs in how he or she presents his or her report or findings to the client. Most reports, however, will include an overall analysis of the major topic areas; the forensic specialist often specifies any additional findings relevant to matrimonial proceedings as a caveat.
BANK ACCOUNT INFORMATION
Bank account information or online banking data is usually reported by the forensic specialist in the reflective proprietary keyword analysis section of the report. The reflective or proprietary keyword analysis is essential to financial discovery because during data retrieval, the mathematical algorithms used to search and organize bits of information are often tied to the repetitive visits or what is commonly referred to as the "favorites" toggle key on a typical computer browser.
Interestingly, banking and financial discovery is best suited for data mining or recovery because the "secure connection" feature employed by most hosting providers actually creates an indelible log of transactions that can often be retrieved later.
Lay people to the computing profession must remember that keystroke analysis and/or a Web site visit analysis will ultimately reveal most, if not all, online banking transactions, online stock transactions, 401(k) borrowing or manipulation, as well as any day trading or suspicious transfer of funds.
As an aside for those interested in proving a cause of action, online gambling and adulterous affairs or inappropriate partnerships can also be revealed through basic data recovery. General untrustworthiness may not be a relevant issue, depending upon the state in which you practice; however, tortious conduct, adultery or fraud are often revealed and acted upon by following monies electronically.
Traditional discovery mechanisms can now be augmented and more focused because of modern-day data forensics. Interrogatories that are no longer fast enough to allow for essential quick recovery can be used in conjunction with data preservation when deciphering a large breadth of information.
The results often provide a matrimonial attorney with fast and accurate financial assessments of his/her client’s position as well as clues of where additional information or documents might be located.
In our modern matrimonial dissolution environment, hidden assets often remain concealed, provided that litigants drag their feet on discovery and then complain to the court for extensions due to various difficulties in retaining records through regular mail or even expedited mail services.
Today, bank account records can be easily downloaded and printed by the individual customer within a matter of minutes. Often, they will predate the marriage if the account does or, at the very least, provide an accurate 3-to-5-year financial history of banking for the marriage.
In today’s society, it is impossible to live the average life without leaving a discernable electronic footprint, which can later be retrieved, interpreted and inspected for purposes of marital dissolution.
The use of data mining is an important discovery tool that is much more cost-effective than previously utilized discovery mechanisms and, when done correctly, can lead to a favorable settlement for your client and ultimate satisfaction on the part of the attorney that he or she achieved the best deal or trial result possible for the client.