Hello, my name is Shilpa Mehta and I am a lawyer with the Feldstein Family Law Group.
With the ever expanding use of electronic communication, one of the greatest challenges facing lawyers today is the discovery of electronically stored information. Electronic discovery, or e-discovery, is now a standard part of the litigation process. Part of my job as a lawyer is to advise clients with respect to the preservation and use of electronic documents. This ensures that clients are satisfying their disclosure requirements as well as making certain that opposing parties or relevant third parties are preserving essential documents. This way, family law matters can proceed in a cost-effective manner. In today’s video blog, I will be briefly explaining the issue of e-discovery in the family law context.
There is a vast difference between electronically stored information and paper documents which make electronic document production a very different process than paper discovery. As a result of these differences, the current Rules of Civil Procedure which govern the discovery of paper documents do not always provide meaningful guidance for disputes involving the discovery of electronic documents.
Generally, the law and our courts are struggling to keep up with new technologies, and how to incorporate them into the legal system. For example, a preservation order to save “all records pertaining to the husband’s business” could be applied logically by a party if all documents were stored in hard copy. However, producing documents in support of this type of order can be extremely time consuming and expensive when all relevant documents have been saved on a computer.
At this point, while most viewers may be finding my blog informative, it is difficult to understand how such issues may be applicable to their matter. Well, let me provide you with an example using a recent court decision in a family law matter.
Eizenshtein v. Eizenshtein is a case where Justice Wildman addressed the issue of emails illegally obtained by a wife that were then included in her Affidavit material in court.
Mr. and Ms. Eizenshtein separated in 2004 and have been engaged in acrimonious litigation since early 2005. Ms. Eizenshtein says that Mr. Eizenshtein is inaccurately portraying his financial situation. Mr. Eizenshtein vehemently denies this.
Mr. Eizenshtein dated a woman after his separation.
After Mr. Eizenshtein ended his relationship with his new partner, his ex-girlfriend gave Ms. Eizenshtein and her counsel a series of e-mails between Mr. Eizenshtein and his former lawyer. Ms. Eizenshtein filed these e-mails as an attachment to one of her affidavits but Mr. Eizenshtein claims they are inadmissible, as they are protected by solicitor-client privilege.
It was ultimately decided that Mr. Eizenshtein’s e-mails were privileged and could not be used as evidence against him.
Yes, it is much easier to obtain confidential information by email, by just hitting the “forward” key. It is easier to search someone’s email rather than hardcopy files, with handy search features. But there are other legal principles the court must respect and uphold.
In all, the lesson to be learned is that while it is important to ensure that the right materials are being preserved in family law proceedings, it is just as important to be aware of the admissibility of materials so that unnecessary time and money is not spent maintaining irrelevant or inadmissible evidence. In this case the evidence was inadmissible because the communication was between a lawyer and his client. We will have to wait and see what happens when this communication is not between the lawyer and his client in another case.
If you would like to learn more about this or any other family law topics, visit our website. If you need legal advice about your own situation, please call us at (905) 581-7222 to schedule an initial consultation. Thanks for watching.