As a divorce lawyer, this is a common question that many clients will ask. Can I get access to my spouse’s phone or can I get the text messages? Your cell phone is in fact a mini-computer and would be technically defined as Electronically Stored Information or ESI, recently a hot topic of debate.
The new Electronic Discovery Act takes a different approach. The California amendments do not expressly permit the identification of sources in lieu of searching and producing inaccessible data. Instead, the new law simply states that when moving for a protective order, the party resisting discovery has the burden “of demonstrating that the information is from a source that is not reasonably accessible because of undue burden or expense.” Amendment to Cal. Civ. Proc. Code § 2031.060(c). In comparison with the two-tiered approach, this new California rule suggests that a protective order is needed to avoid the obligation to produce data that is not in a useable format or that is unduly expensive to read, sort or restore. Depending on how the case law on this subject evolves, it could result in routine judicial intervention in disputes over inaccessible data that a two-tiered approach seems to avoid.
Notably, the Legislative Counsel’s Digest describing this bill somewhat blunts the distinction. It states that the burden of demonstrating that information is from a source that is not reasonably accessible is on a responding party not only when seeking a protective order, but also when “objecting to or opposing a demand for production, inspection, copying, testing, or sampling of electronically stored information.” Id. Although this language is not reflected in the actual statute, it does seem to endorse “not reasonably accessible” as a valid objection on the basis of which a responding party could oppose a discovery request. This is supported by the Sedona Principles and the weight of most e-discovery authorities. So long as the California courts respect and uphold this objection, it will have the effect of shifting some responsibility and the practical burden of obtaining judicial relief back to the parties seeking discovery of inaccessible information, in line with the federal and uniform rules.
• A safe harbor protecting litigants from sanctions for certain types of inadvertently lost electronically stored information. See Amendment to Cal. Civ. Proc. Code §§ 2031.060, 2031.300, 2031.310, 2031.320. Compare Federal Rule of Civil Procedure 37(c).
• Provisions permitting a requesting party to specify the form or forms in which it wants electronically stored information to be produced, and requiring responding parties to include in their responses the form they intend to use if no form is specified or if they object to the specified form. See Amendment to Cal. Civ. Proc. Code §§ 2031.030, 2031.280. Compare Federal Rule of Civil Procedure 34(b).
• A procedure for asserting privilege over materials that have been inadvertently produced, which requires the receiving party to sequester the information immediately, and to return it or present it under seal to the court for a determination of privilege issues. See Amendment to Cal. Civ. Proc. Code §2031.285. Compare Federal Rule of Civil Procedure 26(b)(5)(B).
Changes to the California Rules of Court
At its upcoming meeting in August, the Judicial Council of California is expected to approve amendments to two case management rules in the California Rules of Court. Proposed California Rules of Court 3.724 and 3.728 would require parties to identify and discuss issues relating to electronic discovery early in the course of litigation. These changes are meant to assist implementation of the newly enacted legislation.
In particular, the rule changes would require that if any party informs another party that discovery of electronically stored information is "reasonably likely" in the case, then all parties are required to meet and confer at least 45 days instead of 30 days before the initial case management conference to discuss e-discovery issues. See Amendments to Cal. Rule of Court 3.724(b). The changes would also require courts to address a list of topics related to e-discovery in their case management conference orders. See Amendments to Cal. Rule of Court Rule 3.728.
This is for civil cases generally. What about Family Law? There will be many issues to discuss with the attorney regarding the discovery of ESI. First and foremost, Is it relevant? Of course, all evidence must be relevant to be introduced into evidence. Does the prejudicial effect outweigh the probative value (Evidence Code, Section 352)? Remember that California is a no fault jurisdiction and does the information sought undermine the no fault statutes?
Here is an article about trying to get the information
Stop! It May Be Illegal & May Hurt Your Case
By MICHELE KIMBALL
In my line of work, the most common question I get from readers is advice on how to get access to text messages. Trying to get them out of someone else’s phone without their knowledge is a risky idea. First of all, depending on your state, it can be illegal. Secondly, if you are ever want to use those text messages as part of a court proceeding, like evidence during a divorce, snooping into a spouse’s cell phone can make that information inadmissible.
But there are legal uses for saved text messages, and there are messages in my own phone that I would love to keep for perpetuity, so I wanted to find out how to extract the messages and save them. There are several products that are advertised to easily take the text messages out of your phone and save them to your computer.
I was optimistic that the products would work – I had visions of simply plugging something into my computer, and having all of my text messages come tumbling out onto my screen. But John Simek, the vice president of Sensei Enterprises, Inc., a computer forensics company, told me I would be sadly mistaken. “Most of these things don’t work,” he said. I should have listened.
But I’m stubborn that way, and I wanted to try to do it all myself. I wanted to find out if the advertisements for products that were purported to easily extract saved and deleted text messages from cell phones actually worked.
So, I tested several products that claim to make it easy to retrieve deleted text messages. Many computer programs on the market require a SIM card reader. A SIM card, or security information management card, is the card in most cell phones that stores memory and identifies users on a particular network. The products are made available to people who want to reorganize their telephone numbers or to retrieve lost data in their phones.
The SIM card is not the memory card. It is usually much smaller, and the one in my phone is stored underneath the battery inside the phone. I popped open the phone, slipped out the battery, then pried out the SIM card.
A little background might be in order. I am technologically literate, but I am no expert. If there are directions, I can follow them. If the program is supposed to be intuitive, it probably won’t be for me. For example, it took me an entire weekend to figure out my Ipod, but I figured it out. Then again, in graduate school, I installed a modem into my computer. I fall somewhere in the middle of technological understanding.
Also, it’s worth mentioning that I text message. A lot. I would say that my husband and I send messages about 15 to 20 times a day. On top of that, I text other friends and family members. So my phone is full of deleted and nondeleted messages.
GENERAL CARD READER
I started out just getting a general card reader. There are several card readers on the market, and they are small boxes with a lot of slots on them to fit different kinds of memory cards. For example, if you cell phone and your digital camera have different memory cards, these kinds of one-stop card readers will let you use one piece of hardware for both.
If you shop for a card reader, be sure that it reads SIM cards. The first one I brought home was great, but it didn’t read SIM cards. I went back to the store and specified that it must read SIM cards. On the second try, I got the Sakar Digital Concepts 51-in-1 card reader for $19.99. It is available at a lot of online retailers.
This reader came with software that helps you read your SIM card, but it doesn’t advertise that you can extract deleted text messages. It opened up my phone book, so if I wanted to back that up or organize it, I could. But it was unable to read any of the text messages on my SIM card, deleted or not.
To actually extract text messages or phone information from the SIM card, I figured I needed a program. Some came with their own card readers, some did not. Installing the programs was trial and error. With the packages that came with both the reader and the program, some required installation first, some required plugging in the reader before installing the software.
1. Data doctor recovery.
My first attempt was with a freebie. I found a free Shareware program that said it could recovered deleted information: Data Doctor Recovery. This program popped up over and over through Internet search engines, both as Shareware and as a regular pay-program. It could list the phone numbers that I called, but it could not recognize any of the text messages in my phone. I purposely left messages in the handset, and I deleted messages so I could keep track of what the programs could extract. No luck here.
2. Sim recovery pro.
This was the most expensive of the bunch at $149, http://www.brickhousesecurity.com/cellphone-spy-simcardreader.html. It is a SIM card reader, and it comes with extraction software. The software took not time to install from the provided CD. The program allows the user to organize phone information, restore a deleted phone book, restore deleted text messages, read text messages that have not been deleted, and permanently delete information. I plugged the card reader into my USB port, clicked “Read Deleted SMS,” and … nothing. The dialogue box showed that it was searching the SIM card, and then it just showed the file categories in my text messaging system, but no messages.
I decided to wait a day or so to let some text messages pile up. Then I could see if it was just picking up what was there, or actually extracting. I had several messages in my phone’s inbox, and I purposely deleted two of them. I plugged the reader back in, looking for those two messages. This time? Nothing. You are supposed to be able to click on the following headings to see the messages: Read, Unread, Sent, To Be Send (sic) and Deleted. Nothing was listed. There were at least 20 read and sent messages on my SIM card, and thousands of deleted ones, including the two I deleted right before trying again.
It also showed me the last 10 numbers I dialed, and let me access my phone book. So that told me that the system was partially working. But when it came to the text messages, it just didn’t work.
3. Sim reader.
One of the less expensive products was the SIM Reader from Spyville, http://www.spyville.com/sim-card-reader.html. Like the SIM Recovery Pro, it was a SIM card reader that came with extraction software. Unfortunately, I could not get the software to install. I tried running the enclosed disk, but there were no startup files. I tried plugging the card reader into my computer, thinking it would find the files I needed. Even when I had it search the disk, it could not find the appropriate software.
Compounding the problem here was the fact that there is no support available when things go wrong. I tried several times to call Spyville for help, and there are no ways to contact the manufacturer of the product. So I was on my own.
AT AN IMPASSE
At this point, I got an outside party involved. I had someone else, who is extremely computer savvy, try to get the products to work. He is the computer guru in my life – the guy who always makes everything work. I handed him my cell phone, my neighbor’s cell phone, his cell phone and all of these programs and card readers. He tried everything, too, and he had the same experiences I did – some of the programs work to just see what numbers your phone has dialed, but none of them bring text messages back.
So next time readers ask me the text-message question? I am going to tell them that these programs don’t have the magic answers.
Michele Bush Kimball has a Ph.D. in mass communication with a specialization in media law. She has spent almost 15 years in the field of journalism, and she teaches at American University in Washington, D.C. She recently won a national research award for her work.