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MySpace, Facebook, GPS and other e-Discovery: Coming Soon to a Texas Divorce Proceeding Near You

Like many marriages that end in divorce in Texas, the dissolution of the union between Sarah and Mike Brown (names have been changed to protect the innocent) was not done under the most cordial of circumstances.  The Browns were married for seventeen years, owned an enviable home outside of Dallas, Texas, and were the proud parents of three school-aged children.  Mike had been growing noticeably more distant over the past couple of years and the ideal life they presented in public was a much different reality behind closed doors.  Sarah had a strong suspicion that her husband was having an affair and, being adept at searching her way through the newest pieces of technology, decided to check out Mike’s personal computer when he was out of town on business.  What Sarah Brown found on her husband’s computer hard drive was enough to make her call a divorce lawyer the next morning, and begin an emotional trial that tested the boundaries of the always-evolving legal world of electronic discovery.

Damaging discovery that an attorney can use against an opposing spouse party in a divorce action or child custody proceeding is no longer limited to a trace of lipstick left on a white-shirt collar or a mysterious credit card bill found during a quick rummage through a briefcase.  Today, sophisticated Texas divorce lawyers are more likely to present evidence that comes from cell phone records, Facebook comments, MySpace pages, deleted e-mails, and visits to web sites that were not quite as hidden as planned. 

If divorce clients make the mistake of engaging in behavior that is not conducive to a happy marriage, do not think that they are safe from exposure even while driving in their cars.  Texas divorce attorneys will tell you that even E-Z Pass toll records can be subpoenaed to prove that they were heading somewhere they had no business being.  In addition, a suspicious spouse can attach a Global Positioning System (GPS) device to the family car and later use these recorded routes against your client in court.  These days, the notion that every moment of one’s life is for the public eye does not just apply to celebrities and public figures. However, the attorney needs to be sure that the evidence collected is done in a way that does not violate Federal or State privacy laws.  What is the point of collecting every condemning email or text message if a Federal or Texas State judge decides the documents are inadmissible in court?  Does it matter if the proof of an affair was found on a work computer, a personal laptop, PDA, or a family computer that also is used by the teenage residents for history homework?

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