The first part of this article discussed the importance and focus of data retrieval in matrimonial actions and the parameters of data mining. The conclusion herein addresses privacy concerns, the impact of e-mail and the costs of data retrieval.
PRIVACY CONCERNS REGARDING DATA MINING
Some privacy advocates have attacked data mining during the pendency of matrimonial actions as an inherent invasion of the privacy of one party.
Arguments have also been raised that data forensics, conducted unilaterally by one side inherently lead to the hoarding of relevant information by the adverse party ultimately for dissemination as he or she deems fit.
Additionally, there are extremely valid concerns surrounding medical records and medical information. Counsel can certainly voice specific and relevant privacy concerns to the trial judge. Furthermore, it is likely that legislation will be enacted in the upcoming years that will effectively weaken the ability of one party to manipulate the process.
THE IMPACT OF E-MAIL
The retrieval of e-mail communications and the existence of multiple and previously unknown e-mail accounts has provided unprecedented ammunition for attorneys in recent years. E-mails are often automatically archived and easily retrievable by even the most junior of data retrieval specialists.
Furthermore, they are often very personal and contain information that is relevant to the very heart of the cause of action and ultimate analysis of fault (where fault is a relevant finding).
E-mails often reveal affairs, secret financial dealings, undisclosed partnerships, undisclosed liabilities, hidden assets and, most importantly, the stops through which our data mining road map will be memorialized.
Discovery of travel arrangements and illicit illegal activity can be retrieved and investigated for further use at trial, if necessary, and potential witnesses who may have escaped the litigator’s gaze are often revealed by e-mail.
If potential witnesses or records can be identified early, normal discovery procedures such as interrogatories and document production can be enhanced through the knowledge gained by mining data from a computer utilized during the marriage.
Most importantly, the old adage that possession is nine-tenths of the law is especially true regarding data mining during marital dissolution because the party with the hardware will be the first and often times only known researcher into the intricacies of computerized communications or transactions.
COSTS ASSOCIATED WITH DATA RETRIEVAL
The cost of retaining a data recovery specialist is far less than the retainer and fees charged by most vocational or custody experts. Typically, the costs are half of those charged by most custody experts, and approximately two-thirds the cost of the average forensic accountant.
Interestingly, because of the relatively new nature of computerized data recovery and the variables involving experience and expertise, some reputable data recovery specialists can be retained for substantially less than what most clients might anticipate.
There are varying degrees or levels of data recovery, and costs will ultimately be determined by the complexity of the data mining operation.
The cost-benefit analysis of immediately initiating a data recovery from a known marital port or computer can be best explained to the client as an important first glimpse into the overall actions and conduct of the adverse party in the litigation.
The restrictions on data recovery for one’s own personal computer are virtually nonexistent and it could be considered a strategic coup should a given litigant retain possession over all the computer devices or hardware that could be subjected to data mining.
The information received from data mining is essentially a streaming tickertape of voluminous information that the attorney and trained data retrieval specialist can interpret and utilize for discovery purposes.
Computers are intertwined with every aspect of our daily life and the assertive matrimonial attorney will factor in the possibility of data mining upon his or her overall strategy in a pending divorce action.
Understanding the extent and nature of the information contained on marital computers is additionally important in responding to or quashing any potential subpoenas or emergent motions to quell discovery.
Data mining should not be viewed as a surreptitious activity because all the information garnered is subject to discoverable review, and any privileged communication or information can be deemed privileged by the attorney or deemed irrelevant to the overall litigation.
Data mining undoubtedly assists in production discovery because all accounts are fully listed, transactions recorded and communications retrievable, provided the proper initial steps are taken by the client.
An attorney uncertain about potential hidden assets or an attorney wishing to become more aggressive regarding discovery can utilize data mining as a tool to aid in an overall more favorable resolution to his case.
A matrimonial attorney representing a litigant has the responsibility to complete discovery and allow the client to become as informed as possible regarding the intricacies of the marriage.
The practice of matrimonial law is currently evolving so that our incredibly voluminous financial records are becoming streaming bits of data rather than paper statements received via regular mail.
As attorneys, we must adapt and utilize the information superhighway to assist our clients better and free ourselves from cumbersome traditional discovery mechanisms such as blanket subpoenas and 60-day document production notices. The most successful attorney is usually the most prepared attorney and data mining is an extremely important tool aiding in our preparation.