Tina Shadix Roddenbery, Sarah T. Gordon and Michael L. Glosup
Holland Schaeffer Roddenbery Blitch, LLP
Elizabeth Green Lindsey, Richard W. Schiffman, Jr., and Mina A. Elmankabady
Davis, Matthews & Quigley, P.C.
Chilivis Grubman Dalbey & Warner LLP
TABLE OF CONTENTS
- The Legal Stuff
- State and Federal Laws to be Aware Of, Plus Some Common Law Concerns
- Georgia Law on Computer-Related Crimes
- Federal Law on Computer-Related Crimes
- Common Law Cause of Action for Invasion of Privacy
- Informal Discovery Using the Internet: How Far Can You Go?
- What About Formal Discovery?
- Discovery to Parties
- Third-Party Discovery
- State and Federal Laws to be Aware Of, Plus Some Common Law Concerns
- The Practical Stuff
- The Power of Google and Other Search Engines
- Social Networking Sites: Facebook, MySpace, LinkedIn, Twitter, etc.
- The Rest of the Internet
- E-Bay and CraigsList
- Blogs and Message Boards
- Photos and Videos: YouTube, Flickr and Google Image Search
- Virtual World Gaming Sites, such as Second Life
- Online Newspaper and Article Databases, TV and Radio Websites
- Online Obituaries
- Federal, State and Local Government Websites
- Subscription-Only Databases
- Cross-Referencing and “Drilling Down”
- Authentication: Once You’ve Busted ‘Em, How Do You Use It?
- Using It As Leverage
- Using It In Court
In the good old days, when you were trying to build a case on a wayward spouse, you hired a private investigator to hide in the bushes and catch the cheater. To be sure, there are still times when this is the best way to go. But more and more often, you can achieve the same result from the comfort of your computer chair, without even leaving your office. At this point, it is hard to remember a world without email or Google, and we are all pretty familiar with electronic discovery. As the Internet continues to evolve, there are more and more applications to be aware of – Facebook, MySpace, Twitter, Craigslist, Flickr, Second Life – and the list is only going to get longer. Our clients and their spouses spend an increasing amount of time living, working and playing online – sometimes with the wrong people. So if we want to help build the best case we can, we’re going to have to learn to bust ’em – online, in cyberspace.
II. THE LEGAL STUFF
The focus of this paper/presentation is discovery – mostly informal — using the tools available to us on the Internet. But before we get to the good stuff, we need to step back and make sure we are not violating any laws. Here, then, is a very brief outline of the state and federal laws we need to be aware of and what they encompass. They may or may not be applicable to your particular scenario.
A. State and Federal Laws to be Aware Of, Plus Some Common Law Concerns
1. Georgia Law on Computer-Related Crimes
The Georgia Computer Systems Protection Act, O.C.G.A. 16-9-90 et seq., is part of Georgia’s Criminal Code. Code Section 16-9-93 describes the crimes of Computer Theft, Computer Trespass, Computer Invasion of Privacy, Computer Forgery, and Computer Password Disclosure. In addition to creating criminal liability and penalties in the form of both fines and imprisonment, the statute also provides for a civil cause of action for damages, which may include loss of profits and victim expenditure.
In the case of Computer Theft, Computer Trespass, Computer Invasion of Privacy, and Computer Password Disclosure – see O.C.G.A. 16-9-93(a), (b) and (c) and (e) – a key element is whether the intrusion at issue was “without authority.” “Without authority” is defined as follows:
“Without authority” includes the use of a computer or computer network in a manner that exceeds any right or permission granted by the owner of the computer or computer network.
O.C.G.A. 16-9-92(18). Our research has not disclosed any reported cases in which this statute has been used to prosecute a spouse for a computer-related crime, nor have we found any reported civil cases in which one spouse sued the other for damages under this statute. That is not to say, of course, that no spouse has ever been prosecuted under this statute in Georgia or that no spouse has ever sued the other using this statute in Georgia; we just have not found any such reported cases. It is certainly conceivable that the other side may use the threat of prosecution or a civil suit as leverage in a domestic case, and we should be mindful of that. Since parties to domestic suits seldom agree on anything, you can well imagine a scenario in which the wife claims the computer was used by the entire family and was not password protected or husband had given her the password, while her husband claims that it was for his use only and he never shared the password with anyone. The lesson here is to discuss the particulars with your clientbefore you advise her to see if she can figure out what’s on hubby’s hard drive and make sure she understands what is legal and what is not.
2. Federal Law on Computer-Related Crimes
There are two main federal laws that deal with computer-related crimes. The first is the Electronic Communications and Privacy Act of 1986 (ECPA), which evolved from the Wiretap Act and is now divided into Titles I, II and III. Title I, found at 18 U.S.C. 2510 et seq., regulates the interception of any conversation, including electronic conversations. Title II, found at 18 U.S.C. 2701 et seq., regulates access to stored e-mail, fax communications, and voicemail and is often referred to as the Stored Communications Act. Title III regulates call-tracing devices such as caller ID and pen registers.
The general rule of thumb is as long as you do not intercept any conversations, email or otherwise, contemporaneously with their transmission, you have not violated Title I of the ECPA, See, e.g., Evans v. Evans, 169 N.C. App. 358 (2005) (refusing to suppress emails stored on and recovered from hard drive of family computer); White v. White, 344 N.J. Super. 211, 220 (2001) (concluding wife did not violate New Jersey Wiretap Act, which is based on the federal statute).
As for Title II of the ECPA, the Stored Communications Act, as with Georgia’s computer-related crimes statute, the analysis turns partly on whether access to the computer at issue was “without authorization.” “When access is full to both spouses and not password protected, there is no violation of the act, because the access was not ‘without authorization.'”
More importantly, emails stored on computer hard drives are not subject to the Stored Communications Act. “Electronic storage” is defined in the ECPA as “temporary, immediate storage incidental to the electronic transmission or backup storage of an electronic communication.” Id. Emails already on a hard drive are not in electronic storage, but post-transmission storage. So a spouse does not violate the ECPA by accessing emails on the other spouse’s hard drive. But she may well violate state law if she accesses them “without authorization.”
The other main federal statute concerning computer-related crimes is the Computer Fraud and Abuse Act (CFAA), which is found at 18 U.S.C. 1030. Here too, the main question is whether the spouse’s access was without authorization. A full discussion of the CFAA is beyond the scope of this paper; therefore, we refer you to Laura Morgan’s article, which contains an excellent summary.
3. Common Law Cause of Action for Invasion of Privacy
The issue of whether there is a cause of action for invasion of privacy depends on whether access to the computer at issue was authorized. This often turns on whether a party has a reasonable expectation of privacy concerning the material on the computer. We did not find any Georgia case law directly on point, so we looked at cases from other jurisdictions. For example, in White v. White, 344 N.J. Super. 211, 223 (2001), the court found that a husband did not have a reasonable expectation of privacy in emails stored on the family computer to which the wife had access. In its opinion, the Court asked whether rummaging through files in a computer hard drive was any different than rummaging through files in an unlocked file cabinet. The conclusion was “[n]ot really.”Id. at 224.
Similarly, in Byrne v. Byrne, 650 N.Y.S.2d 499, 168 Misc.2d 321 (1996), wife removed a computer used by her husband from the marital residence and gave it to her attorney. She then sought permission to access the computer hard drive for discovery purposes, which husband and his employer both opposed. The Court wrote:
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. Therefore, it is determined that plaintiff did nothing wrong by obtaining the physical custody of the notebook computer.
168 Misc.2d at 322. It should be noted that in Byrne, the wife sought the court’s permission before accessing the hard drive. If you have any doubts, the safer course of action may well be to get a court order before you start accessing.
B. Informal Discovery Using the Internet: How Far Can You Go?
The above-cited statutes and cases deal largely with accessing information on a hard drive that belongs to the opposing party. But what about personal information that an opposing party posts on the Internet? Are there any dangers here?
The simplistic argument goes like this: if someone is posting information about himself or herself on the Internet, which is a largely public forum, then there is no reasonable expectation of privacy. However, in real life, it gets a lot more complicated. Facebook, for example, has user controls that allow you to select who sees your profile, pictures and postings. So, if an opposing party has his controls set in such a way that only his “friends” can access his postings, can you or your client create a fictitious online identity on Facebook and send a friend invitation in the hope that he will accept so you can see who he’s communicating with online and what they look like? In other words, how far can you go?
You can do it, but you may be violating the terms and conditions of the site. For example, Facebook’s Statement of Rights and Responsibilities contains the following language under Section 4, Registration and Account Security:
Facebook users provide their real names and information, and we need your help to keep it that way. Here are some commitments you make to us relating to registering and maintaining the security of your account.
- You will not provide any false personal information on Facebook, or create an account for anyone other than yourself without permission.
How would a court rule if a motion in limine was filed to keep out the evidence obtained by creating a false account? Who knows, but you need to discuss this issue with your client if he or she wants to do it or has already done it.
C. What About Formal Discovery?
Using social networking sites to gather information about the opposing party falls mostly under the category of informal discovery. However, you should think about how you can use formal discovery to supplement your efforts. This involves thinking globally and cross-referencing from the various formal and informal sources. Remember, the goal is to paint a picture, so if you cannot obtain information one way, you may have to try another.
1. Discovery to Parties
Many attorneys are in the habit of sending out a standard set of interrogatories and document requests without tailoring them to the specific case. There is nothing wrong with that, but when was the last time you updated your standard set of discovery so that it encompasses current technology? For example, do your interrogatories ask the opposing party to identify all social networking sites he or she has used in the relevant period of time? Do they ask for all email addresses, user names, screen names, avatars, and other forms of online identities he or she has used? Do your document requests seek printouts of all postings a party has made on the internet, including but not limited to online personal ads, blog and message board posts, tweets, photographs, etc.? Sometimes the only way you can find out what kind of social networking a party is engaging in is to ask him, so make sure you do.
2. Third-Party Discovery.
What about third-party discovery to the service providers? Here you have to decide whether it is really worth the effort, as you are likely to encounter several hurdles in the process. That said, if you can clear all the hurdles, you may well end up with information that changes the entire case. For example, we once successfully subpoenaed cell phone tower records and used them to prove that our client’s wife was indeed having an affair, despite her having sworn under oath that she was not.
The records from adult (and other) sites can sometimes be obtained through a subpoena. Many may have very juicy records to offer, and many will comply with a subpoena. Still, the process is not easy or simple. At least to our knowledge, all adult web sites are headquartered outside of Georgia and do not maintain registered agents for doing business here. Georgia cannot compel the testimony of an out-of-state party. If you are going on the offensive, you need to carefully fulfill each step for the subpoena of an out-of-state person or entity. If you are defending, you need to make sure your opponent has followed each step and move to quash the subpoena if they have not.
In order to compel the deposition of and/or the production of documents by an out-of-state party, the party seeking the discovery must move for an order or commission from the Georgia Court which has jurisdiction over the case and use this order or commission, assuming it is granted, to seek the issuance of a subpoena from the court of jurisdiction where the prospective deponent is located. Additionally, the party seeking discovery must comply with the local laws concerning the issuance of discovery and service of the subpoena.
We once had a case in which we represented a public figure who was being sued simultaneously for divorce and for modification of custody by a former spouse. His current spouse had found out through a forensic examination of his computer that he visited sex-oriented websites that facilitated real-life hookups. The forensic examination had also yielded some of the profile names and handles our client had used. Third party discovery was filed in both the divorce and modification actions. The subpoena from the modification action sought:
Copies of all profiles, biographies, summaries, descriptions, correspondence (including electronic mail) or other documents submitted by or on behalf of _____________, Social Security Number: ___________; Date of Birth: __________; to SEX.COM, or any other website operated, owned or maintained by PlanetInc., for the period from ___________ to the present date.
A copy of all communications, including but not limited to, email correspondence, instant messages, chat room messages, and winks that _________, Social Security Number: ___________: Date of Birth: _________, has sent or received through SEX.COM, or any other website operated, owned or maintained by PlanetInc., for the period from ____________ to the present date.
A copy of all profiles, biographies, summaries, descriptions, correspondence (including electronic mail) or other documents associated with the usernames ________, __________, ___________, or ___________ on SEX.COM, or any other website operated, owned or maintained by PlanetInc., for the period from _________ to the present date.
A copy of documents or tangible items that evidence the use of or access of SEX.COM, or any other website operated, owned or maintained by PlanetInc., by _______________, Social Security Number: ________; Date of Birth: _____________, for the period from ___________ to the present date.
We responded with a Motion for Protective Order and Motion to Quash in the modification action. We sought protection pursuant to O.C.G.A. 9-11-26(c) from “annoyance, embarrassment, oppression.” We also claimed that in part the information sought was protected under 18 U.S.C. 2702, which states “a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service.” There is a law enforcement exception for this code section but not one for civil subpoenas. This code section is used by some large telecommunications providers and internet service providers to avoid compliance with subpoenas in civil actions. We took up this argument because the subpoenaed entities, who were very small operations, had neither the budget nor the inclination to fight the subpoena themselves. We also made an argument on First Amendment grounds concerning anonymous speech.
Additionally, we moved for a Confidentiality Order to protect any documents produced, as we doubted the success of our Motion to Quash. In the divorce action we filed a Motion for Protective Order where we pointed out some problems with the opposing party’s procedure in the out-of-state depositions. They had filed Motions for Issuance of Commission in Georgia and the Court ordered them. But the opposing party was seeking to have depositions (or document productions) before the issuance of subpoenas in the foreign states. We also sought a Confidentiality Order for the protection of our client from harassment and embarrassment. It should be noted that the three third-party entities were willing to produce the documents being sought, and we worked very hard to stay in frequent contact with their officers to ensure that they did not produce anything before we made our motions and before the Court had ruled on our Motions. We provided the lawyers for the websites with copies of our motions and Notice of Hearing. The delay provided us the time we wanted in order to settle the case before the motions came up for hearing. The case did settle, and the documents were never produced.
In short, formal discovery served to adult-oriented websites may have a higher success rate than that served to larger and more established internet service providers such as AOL or Earthlink or telecommunications firms such as T-Mobile. Despite the fact that the adult website service may have millions of members, it may be a small operation, like those in our example, lacking the legal resources of a large firm. And while their business may be perfectly legal, it is one in which they yet may not want to draw attention to themselves with a protracted fight over a subpoena. It is easier for them to just comply
III. THE PRACTICAL STUFF
It is one thing to understand the legalities of informal discovery using the internet and how the formal discovery toolkit can supplement your efforts. It is another thing entirely to know the ins and outs of just doing it. The purpose of this part of the paper/presentation is to provide you with some techniques and tips for finding the information you need.
A. The Power of Google and Other Search Engines
The first place to start in researching a person online is to “google” his or her name. Google is an incredibly powerful search engine. Its automated bots search the web 24 hours a day gathering and indexing information to be returned to you in searches through their proprietary algorithm. Google maintains millions of servers in thousands of data centers across the nation and the world. The company is understandably closed mouthed about their infrastructure due to security concerns. There is no doubt that the sheer volume of information available via Google boggles the imagination. But this ubiquitous tool is woefully underused.
When googling someone with a common name, add as much information to the search as you can-city and occupation for instance. “John Smith Atlanta attorney” will narrow your search down to much more manageable results than “John Smith”. Typically, you can find the person’s place of business, clubs of which they are members, news items mentioning them, any blogs they maintain, addresses and phone numbers. While this may not be the end of your search, it can get you off to a strong start. Be sure to read the returns carefully to look for corroborating information to confirm that the search item returned is the “John Smith” you are targeting. Also, be sure to read carefully for additional information you may want to add to your file, such as alternate phone numbers and email addresses.
We once googled a person who was supposedly “just a friend” of the opposing party. By googling him, we learned where he worked. We then hired a private investigator to follow him home from work. “Home” was actually a second apartment where the opposing party and he were setting up house. They had been careful not to provide this address on any written records or in discovery, so we would never have found the apartment had we not googled him. Evidence from the private investigator settled the case.
The additional information uncovered, such as phone numbers and especially email addresses should itself be the subject of a new search. People often post on message boards and internet forums using only their email addresses as identifiers, and a Google search on the email address will uncover these results.
A corporate entity that turns up can be searched itself as well for news items and financial information. Publicly traded companies usually have a surfeit of information returned as results including SEC actions, press releases and news items. Single member LLCs and closely held companies should be searched at the Secretary of State’s Office of the state where they are incorporated. In our searches of the Georgia Secretary of State’s Corporate Division, we have found companies owned by the opposition where the opposition’s paramour was listed as an officer.
B. Social Networking Sites: Facebook, MySpace, LinkedIn, Twitter, etc.
A Google search will usually turn up any social networking sites the target has joined-at least those in his own name. Facebook, Myspace and LinkedIn usually return very high in Google search results.
To view a Facebook page you will need an account. You need not use your real name to open the account. But be advised that this is a violation of Facebook’s “Statement of Rights and Responsibilities”-that you will not provide any false account information-and they will terminate your account should they find you using a false name. The likelihood of being found out is low, however, as long as you do not actively post and use your fake name account only for viewing.
Even with your fake name account the amount of information that can be viewed is limited. Typically only “friends” have access to the posting information and you must request and be granted “friendship” from the party whose information you are seeking. However, the one feature generally open to all Facebook members without becoming a friend is the list of the party’s friends. You can click “View Friends” on your target and maybe find his girlfriend listed. When looking at one of our target’s girlfriend’s Facebook accounts, we were able to see that although she was not “friends” with him on Facebook, she was “friends” with one of his other girlfriends. We were able to exploit this information in her deposition and make her very uncomfortable, a little angry and little more apt to cooperate with us.
Of course, maybe your target is using a fake name on Facebook. This is where you use any email addresses you have uncovered in other searches. Facebook allows you to search by email address. So even though “John Smith” may have signed up on Facebook as “John Jones,” he may have used his email@example.com address to do so and you will find him this way.
You can request friendship under your fake name with your target, but he may or may not accept your request. If he does, you will be able to see photos the target has posted, the marital status claimed by the target, and postings the target has made-which may include musings on adulterous relationships, braggadocio on finances, and other information useful in opposition research.
MySpace.com is typically more open by default than Facebook. You often will be able to see the target’s friends, postings of friends, pictures of friends, pictures and videos posted by the target. Often other alternate email addresses are included in the profile, and these should of course be googled on their own to see what turns up. One other item that should be searched on Google is the Facebook and MySpace addresses, which may in turn lead to other forums and message board postings or profiles of groups of which the target is a member, such as singles groups.
Online singles groups and adult social networking sites such as adultfriendfinder.com are for meeting members of the opposite or same sex for relationships or casual encounters. It is doubtful a target would use these groups under his own name. But this is where your previous research may pay off. The alternate email addresses you have uncovered and the fake names you have uncovered may be used at these sites. There is one other trick of searching an alternate email address you have uncovered. Say we have uncovered that our target John Smith uses an alternate email address such as firstname.lastname@example.org. You should google the term “loverboy101” by itself. You may find that your target has used this as a login name on adultfriendfinder.com or another singles or sexually oriented website.
LinkedIn is a business-oriented social networking site and not as sexy as adultfriendfinder.com. But it should by no means be overlooked. The target’s LinkedIn page should be scanned carefully for the financial information they may inadvertently disclose. The LinkedIn page owner lists his company, his position, and often his past employment history and a resume or CV. A party may have claimed on his DRFA that he is an employee at a particular company, but in his LinkedIn profile he may identify himself as an owner. And who knows? You may even get lucky and find that your target has listed his girlfriend as a LinkedIn connection.
Twitter is a social networking site where the user sends out 140-character bursts of information. You can sign up to “follow” a user on Twitter, usually without permission. We have followed Twittering celebrities and their Twittering girlfriends to keep tabs on them.
Of course, these social networking knives cut both ways. In interviews with clients, it should be ascertained what their presence is on the Internet-and they probably need to be researched by the attorney as well independently of what the client has stated. We all know clients are not always the most truthful of people. In any event, our clients’ use of these sites, any web pages they maintain, as well as their texting habits, emailing habits, and blogging habits need to be assessed, and clients may need to be advised to curtail their online activity, at least for the pendency of the litigation. They may need to be advised to try to clean up any messes that they have made in cyberspace to the extent that it is possible. For example, if your client has a MySpace page with pictures of her on vacation with her lover, she should take it down. It may exist in Google’s cache for a while and still be uncovered by a determined investigator, but at least it will not be the top return of a Google search on her name.
C. The Rest of the Internet
1. E-Bay and CraigsList
In addition to social networking sites there are plenty of other sites to be searched. One popular example is E-Bay, which is an enormous online auction and merchandise sales site. Again, email addresses and alternate email addresses are helpful for uncovering E-Bay accounts. You can find out if the target has been selling the family jewels in preparation for the divorce, or you may even discover that the target has undisclosed income from an E-Bay-based business.
Craigslist can be used for finding an apartment to rent, selling a motorcycle, looking for a job, or hooking up for some casual sex. Understand that the personal ads on Craigslist do not contain personal email information (Craigslist forwards responses to your ad to your email without disclosing it to the responder). We once represented a client who advertised and/or responded to adult advertising on Craigslist, and the opposition subpoenaed Craigslist as a third party. Craigslist did cooperate with us as we moved to quash the subpoena, but the case settled before that issue was finally addressed. And it should be noted that the opposition found out about our client’s activities from copying the hard drive of his computer, not from Internet searches they performed.
2. Blogs and Message Boards
Another source is blogs and message boards, which can be rich with information, especially a personal blog maintained by the target. Your email address searches may uncover postings to message boards that may be relevant, such as forums for STD sufferers, forums for alternative lifestyles and sexual practices, and advice forums where the target may have disclosed personal information relevant to the action.
3. Photos and Videos: YouTube, Flickr and Google Image Search
Another area not to be forgotten is video and image searches. YouTube is the go-to site on the Internet for video content, including everything from excerpts from popular TV shows to home videos, so you’ll want to check if the opposing party has been captured on tape. Flickr is one of several photograph hosting sites where people post photographs for others to access online. You may be able to uncover Flickr or other accounts searching on the alternate email addresses you have found or the portion of the email address contained before the “@”sign as described above. You may uncover Youtube accounts as well this way and find any videos posted by the target.
Google has an excellent image search feature which can be accessed by clicking “Images” at the top of the Google page. Basically, it will return any images with the name you search or images on pages containing the name you search.
4. Virtual World Gaming Sites, such as Second Life
Maybe one of the most interesting areas online for the future is Second Life. Second Life is a virtual world where users create avatars, have homes, go to parties, make virtual money, buy virtual objects and have virtual sex. Second Life has already been an issue in a divorce in the United Kingdom (involving a virtual girlfriend in the U.S.) and the issue has been raised in the Wall Street Journal, Is this Man Cheating on his Wife?. One wife interviewed in the article stated, “you try to talk to [your husband] and they’ll be having sex with a cartoon.” The concept of leading a double life is not a new one in the divorce context, but Second Life provides a way to do it in cyberspace.
5. Online Newspaper and Article Databases, TV and Radio Websites
Most newspapers, broadcast and cable networks, and TV and radio stations have websites with searchable archives, so these should always be checked for articles concerning or perhaps even authored by the target. Check out the wire service websites also, such as those for Associated Press and Reuters. Findarticles.com is another good source.
6. Online Obituaries
Most newspapers archive obituaries also, so either try the individual newspaper site or go to www.obituaries.com, which has links to numerous newspapers in the United States and Canada. Obituary information can be helpful in locating witnesses or, in some cases, even assets.
7. Federal, State and Local Government Websites
Government websites are a great source of information. At the federal level, the US Patent and Trademark office maintains a database showing interest owned in intellectual property – check out www.uspto.gov. EDGAR is the online source for SEC filings – go towww.sec.gov/edgar. And, of course, PACER and the US Case Party Index can be used to search for bankruptcies and actions in the federal courts.
On the state level, as mentioned before, the Georgia Secretary of State maintains an excellent website with corporate information. You may want to cross check any officers you find in the companies found for your target. You may find that your target’s business dealings are substantially more byzantine than you previously suspected. Also, remember that nearly every state’s Secretary of State maintains corporate registrations online now.
The Georgia Secretary of State’s website also has a searchable database of licensed professionals that includes everyone from acupuncturists to veterinarians. To find medical doctors, you will need to go to the website for the Composite Board of Medical Examiners. Nurses, chiropractors and psychologists are in the Secretary of State’s database, while psychiatrists and osteopaths can be found in the Composite Board’s database.
The Georgia Superior Court Clerk’s Cooperative Authority maintains a fantastic resource at gsccca.org with scanned images of real estate and lien filings for the entire State of Georgia. For property outside of Georgia, use Google to find who keeps the property records for the jurisdiction for which you are interested. We have found detailed property records with images of deeds and associated documents at county clerk’s websites in Walton and Manatee Counties in Florida, Transylvania County in North Carolina, Maricopa County in Arizona, among others. Also, county tax commissioners and assessors websites are useful for confirming addresses, making sure you have the correct venue or that you are correctly serving a subpoena. And of course, you can get a rough idea of value from these sites too.
Many court clerks are posting dockets and even images of pleadings online in databases that can be searched by party name. Some sheriff’s websites are useful for checking on service and some maintain lists of inmates. When in doubt, just google the county name along with the words “court clerk” or “sheriff.”
8. Subscription-Only Databases
Do not overlook your online legal research provider. Your subscription may include some proprietary databases that you can use to gather information on an opposing party. For example, Westlaw has some very rich features for subscribers that are often underutilized. One is its excellent reverse telephone lookup. Even where it does not return a name, it will return a telephone service provider. We have found that it often returns the names associated with unlisted numbers that are not returned in searches on publicly available and free services such as anywho.com.
Another good Westlaw tool is People Finder-Combined, which returns such information as utility hookup records, current address information maintained by credit bureaus, voter registration information, and household information including others living in the home. The Asset Searches feature can by useful in locating cars, boats and any other vehicles that a party may own. Georgia’s DMV information is not included in this database, but data from other states is readily available. Adverse Filings will show all civil actions involving the target across the country. Westlaw also maintains a Legal Directory which can be very useful in searching for the legal departments of large corporations. Sometimes it even provides direct phone numbers and email addresses for the General Counsel.
Also, most private investigators have access to proprietary databases marketed specifically to that industry. If you are really stuck, and your target has covered his tracks particularly well, you may want to ask your PI to run a search using one of these databases.
D. Cross-Referencing and “Drilling Down”
It is practically impossible to list all of the internet search options. Use your imagination and be patient and tenacious. When searching, remember to not quit when you find something. Treat your results as more data to be entered into your search to see what else turns up. Always drill down. The one piece of evidence that will bust open your case will not appear at the top of your Google search list. You will have to search smart and search hard to find it. Remember to integrate all your findings, looking for patterns, correspondences, contradictions that need to be further researched, corroborations and triangulations. The Internet and modern technology have given us discovery tools not imaginable only a few years ago. But these tools still require a lot of sweat and effort on our part to make them work for us.
Of course, none of the information available on the internet is of any use unless you examine it thoroughly and pay close attention to detail. Often it needs to be cross-referenced with information obtained in more traditional ways. For example, you may have obtained cell phone bills either from the opposing party or his carrier. Cell phone billing detail yields rich results including number called, calling number, time of the call and duration of the call. These records should be examined carefully and reverse phone lookups, such as reversephonedirectory.com or the excellent reverse lookup provided by Westlaw, should be used. A series of late night, long duration calls to a phone number owned by a member of the opposite sex is certainly grounds for further investigation.
An often overlooked and underutilized source of information is credit card records and bank statements. We all request these from the opposite party and from third parties. However, they often contain detail we overlook or fail to properly map. What was charged is often less important than when and where it was charged. Credit card statements generally have transactions sorted by date. Often the store is identified by address or by number, so you should use the store’s website to find out where a certain store number is located or call the headquarters and ask. The transaction is usually posted the same date it is made. If not, this is often noted on the statement. If you are suspicious of your target’s movements, map the transactions, overlaying them on Google maps. Also, put the transactions onto a calendar to look for patterns. You can deduce the dates of out-of-town trips this way. We once calendared the credit card transactions of an opposing party who was claiming to be virtually an invalid. We demonstrated that she was an avid shopper who frequented malls, restaurants and movie theaters daily. We have mapped and calendared the transactions of parties and demonstrated that they were not where they said they were at the time they said they were there.
Keep in mind that integrating your discovery findings is very powerful. Remember the aforementioned adulterous wife whom we busted with cell phone tower locations? We also busted her with credit card information. Always look to see how the data you discover corroborates or at least triangulates with other data.
V. Authentication: Once You’ve Busted ‘Em, How Do You Use It?
A. Using It As Leverage
Once you obtain information about the opposing party from the Internet, you have already strengthened your bargaining position. It may be possible to use this discovered information as evidence during a court hearing or the trial in your action. Using the discovered information as evidence is discussed in the next section. However, even if you do not use the information as evidence in court, you may have already given yourself the upper hand in the litigation.
Maybe it is the comfort of posting behind an anonymous or made up name, but many people share and post information on the Internet that they would never share in the day to day world. Therefore, if you are able to obtain this information, you will gain immediate leverage over the opposing party. This person may be willing to quickly change their previous offers and position solely to prevent others from also learning this potentially embarrassing information. Naturally, how far a person is willing to go to prevent information from being divulged depends on both the person and the information discovered. However, by simply obtaining this information and informing the other side that you have it, you will have increased the chances of settling the case on terms more favorable to you.
B. Using It In Court
If you are not able to reach a settlement of your case, the next step is to consider using the information obtained from the Internet as evidence in court. Discovering information on social networking sites is only half the battle, you must then be able to admit the information in court. As one would imagine, the law in this area is relatively unsettled.
In determining the admissibility of information obtained on the Internet such as e-mails, instant messages, and posts on social networking sites, courts generally hold that such communications can be admissible if two conditions are met. First, information obtained on the Internet may be subject to a hearsay objection, as it may be considered an out of court statement. Therefore, unless it is an admission or subject to another hearsay exception, the content cannot be offered for the truth of the matter asserted. Second, the proponent must be able to authenticate the information he or she wishes to admit.
To authenticate a document or other item of evidence means to show that the document or item is what the proponent claims it to be. It is the proponent’s burden to offer evidence sufficient to enable a jury to find that the document or item is authentic.
In 2009, the Georgia Electronic Records and Signatures Act was repealed and replaced with the Uniform Electronic Transactions Act, O.C.G.A. 10-12-1 et seq. Under the Uniform Electronic Transactions Act, courts are generally required to treat electronic records the same way as paper documents are treated. In fact, the new statute expressly provides that, in legal proceedings, evidence of a record may not be excluded solely because it is in electronic form.
Under Georgia law, a non-public document can be authenticated in any manner that directly or circumstantially identifies the source of the document. Gunter v. State, 243 Ga. 651 (1979). Electronic records are to be treated as “writings” and authenticated in the same manner. E-mails are authenticated in the same ways as letters, though Georgia courts have acknowledged that “e-mail offers unique opportunities for fabrication.” Simon v. State, Ga.App. 844 (2006). The mere fact that a writing or e-mail “says” it is from a particular source is not enough, by itself, to authenticate the document or message. Ross v. State, 194 Ga.App. 464 (1990) (“Although the genuineness of a writing may be proved by circumstantial evidence, this cannot be done solely by the face of the writing itself”). Rather, the party must offer evidence that either directly or circumstantially identifies the source of the document. Likewise, “[e]lectronic computer messages are held to the same standards of authentication as other similar evidence. Hammontree v. State, 283 Ga.App. 736 (2007) (transcript of IM session authenticated by testimony of person who participated in session that it was a true and accurate transcript of session; identity of defendant as participant in session authenticated by circumstantial evidence).
Authentication objections often arise because of the difficulty of establishing who is actually responsible for creating material on the Internet. One person can easily create a web page on a social networking site in another’s name, or send an e-mail or post a message in another’s name. Therefore, information obtained on the Internet must be scrutinized before it is admitted as evidence. Despite this heightened level of scrutiny, information obtained on the Internet will still be admitted if the party is able to properly authenticate the document. As a Pennsylvania appellate court stated: “[w]e see no justification for constructing unique rules for admissibility of electronic communications such as instant messages; they are to be evaluated on a case-by-case basis as any other document to determine whether or not there has been an adequate foundational showing of their relevance and authenticity.” In the Interest of: F.P., 878 A.2d 91 (Pa. Super. Ct. 2005).
Based on the lack of law in this emerging area of evidence, a party attempting to admit information from the Internet into evidence should offer as much circumstantial or direct evidence in support of the discovered information as possible. Some practice points include: providing testimony from the person who obtained the copy of the web page, stating when and how it was copied and affirming that the copy is accurate; obtaining information directly from the social networking site provider if possible; and offering evidence that the purported author of the web page actually wrote it. This can be done through the testimony of a witness who observed the creation of the web page or by content on the web page that connects it to the author. Once a party is able to admit this discovered information into evidence, it may be the difference in winning or losing the party’s case.
Whether we like it or not, most of our clients use the Internet every single day, and in some cases, it is possible to discover their lives by tracking their online activity. The advent of social networking sites only increases the amount of online content generated. For us attorneys, that can mean a whole world of insight into a case that we would otherwise not have. People who would not dream of sharing information with friends in person will often turn around and divulge that same information in an online public forum full of strangers. As we all know, human behavior is not always reasonable or logical, but thanks to the Internet, we might just be able to bust ’em at it.