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Discovery in matrimonial actions is governed by the Civil Practice Law and Rules (CPLR), the Domestic Relations Law (DRL) and by the “Uniform Rules” found within 22 New York Codes, Rules and Regulations (NYCRR) Part 202. Under DRL �236B(4), “compulsory financial disclosure” is the standard. It is well-settled that DRL �236B requires “broad pre-trial disclosure” where the “entire financial history of the marriage is open for examination,” potentially also including the period just prior to the marriage. 1 This involves a “searching exploration” of the parties’ assets and financial dealings. 2 All discovery devices set forth in the CPLR Article 31 are available for use in a matrimonial action since the broad disclosure mandate creates a situation ripe for discovery under CPLR 3101. 3 As with all civil cases, CPLR 3101 permits disclosure in a matrimonial action of all matters that are “material and relevant” subject to privilege, attorney work product and material prepared for litigation. Electronic Discovery Facts Electronic discovery, or “e-discovery,” normally involves hiring a forensic computer analyst to examine data retained, or often deleted, from computer hard drives, floppy drives, external drives, peripherals and other storage devices for potential evidence. As it pertains to the matrimonial case, stored documents, e-mails, conversations, on-line records, visited Web sites and the traces thereof, may be culled to find information as to the parties’ finances, hidden assets, proof of extramarital relations or sexually explicit materials, which may impact upon a custody determination. 4 Electronic discovery is increasingly prevalent in high stakes corporate and federal litigation. The complications involved in e-discovery create a myriad of problems for the practitioner who is not computer savvy and even for the practitioner who has a firm grasp on the technical concepts. 5 There appears, however, to be only two reported matrimonial cases in New York where the issue of electronic discovery has been discussed: Byrne v. Byrne 6 and the recent Etzion v Etzion. 7 In Byrne, the plaintiff-wife removed the husband’s notebook computer from the marital residence where it ultimately found its way to plaintiff’s attorney and then to the court. Plaintiff claimed that the computer contained information as to the defendant’s finances while defendant alleged that it was the illegally removed property of his employer, Citibank, and contained no relevant information. Citibank joined defendant in opposition to the discovery application and asserted that the computer was, in fact, theirs. The court found the computer was used by defendant not solely for his employment and that he allowed the children to use it. Further, that it was a family computer and there was no “illegal” removal by the wife. ‘Akin to a File Cabinet’ The court went on to hold, “The real issue is not who possesses the computer but rather who has access to the computer’s memory. The computer memory is akin to a file cabinet. “Clearly, plaintiff could have access to the contents of a file cabinet left in the marital residence. In the same fashion she should have access to the contents of the computer. Plaintiff seeks access to the computer memory on the grounds that defendant stored information concerning his finances and personal business records in it. Such material is obviously subject to discovery.” The court directed the parties to appear with their experts to download the memory files and deposit the original files with the court to generate lists of the documents for the parties so that any claims of privilege could be made. Defendant was given 10 days to move for any protective orders or have all materials turned over to plaintiff. The computer itself, upon completion of the downloading process, could be returned to Citibank. Some nine years later on Feb. 17, 2005, Justice Elaine Jackson Stack in Supreme Court, Nassau County, cited Byrne in the Etzion case, permitting discovery by plaintiff under the supervision of a court referee, of the defendant’s various computers maintained at various locations. In Etzion, plaintiff moved, in pertinent part, for an order “permitting Plaintiff and her computer forensic experts to ‘impound, clone and inspect the computer servers, hard drives, individual workstation P.C., laptops and other items containing digital data’” from plaintiff’s residence and business locations. 8 Plaintiff’s request, declared by the court to be “all-encompassing,” involved several foreign entitles as well as domestic entities and the defendant’s personal computers. The court found that the e-discovery request “fulfills the ‘material and necessary’ requirement of statute” and, while ensuring the protection of potential privileged and extraneous personal materials from disclosure, granted discovery, holding, “Defendant shall notify the referee of the locations of computers on which business records are maintained or entered. Thereafter, Plaintiff’s expert, accompanied by Defendant’s expert and the attorney referee, shall be present at the locations designated as sources of computer data. The Plaintiff’s expert shall clone or copy the hard drives of such computers. The resultant hard drive shall be immediately turned over to the Referee. This procedure shall be followed until all computers on which business records of Variety and/or the foreign entities appear shall be cloned, with the resultant copy turned over to the Referee. At a location jointly selected by the aforesaid computer experts of each of the parties and the Referee, the hard drives shall be examined. Hard copies of any Business Records found on such hard drives will be made and distributed to attorneys for both parties. The records must relate to the Foreign Entities and/or Variety. Personal records, e-mails or other correspondence between Defendant and third parties and/or Defendant and his counsel shall not be copied or transmitted to any attorney. At the conclusion of the review of the cloned hard drives, the Referee shall maintain control of the clones until conclusion of this matter, at which time the cloned hard drives will be returned to Defendant for disposal. Where questions arise as to the appropriate review of a particular document, the Referee’s determination shall be final.” The court determined further that the plaintiff, as the party seeking discovery, should bear her own costs of discovery, subject to reallocation. Civil Practice Law and Rules The issue of electronic discovery is not specifically addressed at present by the CPLR. As Justice Leonard B. Austin held in the analytical Lipco Electrical v. ASG Consulting Corp., 9 in extending the discovery provisions of CPLR 3101 to e-discovery, “Electronic discovery raises a series of issues that were never envisioned by the drafters of the CPLR. Neither the parties nor the Court have been able to find any cases decided by New York State Courts dealing with the issue of electronic discovery.” 10 In the quest for information, where millions of dollars may be at stake, the issue of e-discovery is sure to arise more often in the “sweeping exploration” mandated by present matrimonial law. Balancing additional and complicated e-discovery against the burdens and costs already existing in these cases remains a difficult task, which will fall not only upon the litigants and their counsel, but squarely upon the shoulders of an already-overwhelmed trial court. In the two matrimonial cases that have addressed this issue, the court has been properly mindful of potential prejudices that may result from carte blanche e-discovery. In the proper case, electronic discovery may be crucial to determine and confirm the existence of vital information. In others, it may be a weapon of abuse which will further clog a system that is already in dire need of relief. This is a developing area which would seem to be ripe for litigation, in need of legislative and/or appellate guidance, and worth watching. Lee Rosenberg is a partner in the law firm of Saltzman Chetkof & Rosenberg in Garden City, N.Y., with a practice concentrating in matrimonial and family law. Endnotes: 1. Kaye v. Kaye, 102 AD2d 682, 478 NYS2d 324 (2d Dept 1984) 2. Rubin v. Rubin, 87 AD2d 587, 447 NYS2d 762 (2d Dept 1982); Lobatto v. Lobatto, 109 AD2d 647, 486 NYS2d 235 (1st Dept. 1985) 3. Lobatto at endnote 2 4. Discovery as to “marital fault” and custody issues may be permitted depending upon in which judicial department the case is pending. 5. Shira A. Scheindlin, Outside Counsel, “Electronic Discovery Takes Center Stage,” NYLJ, Sept 13, 2004 at 4, col. 4; Eric Rieder and Mark Brennan, “EEK! E-Discovery!,” NYLJ, March 28, 2005 at S4, col.1; Mark G. Hanchet and Kristen R. Fournier, “Drafting Effective ‘Litigation Hold’ Instructions,” NYLJ, March 28, 2005 at S6, col. 3 6. 168 Misc2d 321, 650 NYS2d 499 (Sup Ct Kings County 1996) 7. -Misc2d-, -NYS2d-, 2005 N.Y. Slip Op. 25115 (Sup Ct Nassau County 2005) 8. Upon application to the Appellate Division, a temporary order was also issued directing that defendant “cease the rotation, alteration and/or destruction of electronic media that would result in the inability to recover the sought over computer data regarding all actual and potential business interests involving the Defendant.” 9. 4 Misc3d 1019(A), 2004 NYSlipOp 50967(U) 10. A recent First Department decision, Board of Managers of Atrium Condominium v. West 79th Street Corp., -AD3d-, 792 NYS2d 444, 2005 NYSlipOp 02586, held the defendant’s request for electronic discovery of plaintiff’s attorneys records to have been properly denied as academic. The underlying issue, however, is not explored, except to indicate that the trial court found it to be part of defendant’s “preoccupation”. In a lower-court decision in Weiller v. New York Life Ins. Co., 6 Misc3d 1038(A), 2005 N.Y. Slip Op. 50341(U), the court held that CPLR 3103 protective orders remained available to protect against burdensome and prejudicial requests for e-discovery.

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