Stuff From the Top of My Desk, Part I

by Annette Burns on September 15, 2010

A Wife's request for inspection of a clone of Husband's hard drive, on the theory that the hard drive contained evidence of his income and assets, was limited by a New York court. Schreiber v. Schreiber, 6/25/2010 — see Schreiber

Husband was an attorney and objected to the cloning and inspection of the hard drive on several grounds, including privileged communications with his own attorney, and his clients' privileged information.

The New York court ruled that the turnover of Husband's hard drive would not be unrestricted. The court did order that the hard drive could be cloned by Wife, at her expense, and that the original hard drive would be maintained by Husband's attorney. Wife and her experts were not permitted unrestricted access to the cloned drive. They could not examine "all computer files and file fragments" on the drive. That request was overbroad and sought general and unlimited information. The court ordered that before Wife or her experts could examine the drive, a specific protocol had to be proposed and approved by the court. Wife was required to provide step-by-step, detailed discovery protocols which would cover issues including a discovery referee, a forensic computer expert, how the file analysis would be accomplished, the scope of the search, first and second-level reviews of the information, how discovery disputes would be resolved, how costs would be shared, deadlines, and who would retain the cloned drive.

This decision is important because it reviewed and discussed three reported New York decisions where hard drive cloning was an issue in a divorce case: Etzion, R.C. v. B.W, Byrne v. Byrne, and Boudakian v. Boudakian.   Access, use and copying of emails was addressed in Gurevich V. Gurevich.    And two articles on these subjects are mentioned: Forensic Inspection of Computer Hard Drives Under New York Law (NYLJ, Sept 1, 2005); First E-Discovery Demand: Access to Clone of Hard Drive? (NYLJ July 18, 2005).

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A New Hampshire court confirmed that a parenting plan clause which requires the parents to use ADR before filing with the court about parenting disputes is constitutional. In re Martin, 8/19/2010, see Martin .

A parent challenged this provision on the grounds that it denied her access to the courts and denied her due process. In rejecting that claim, the court stated that the requirement to "seek the help of a neutral third party" before filing with the court did not impose a specific requirement that the neutral actually be of assistance. The parties were entitled to judicial relief, after demonstrating that the neutral's help was sought. The allegation that the requirement would cause undue delay in access to the courts was rejected, as was Mother's claim that the clause interfered with her fundamental right to parent.

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What's Your Co-Parenting Style?  Here's a good blog post on different parenting styles. Trying to cooperatively parent is an admirable thing, but it's not always possible, post-divorce. P arallel parenting is a perfectly acceptable alternative, where the parents need more distance from each other. This blog post points out the differences between cooperative and parallel parenting in several situations.

Any parent struggling to co-parent after divorce should read Philip Stahl's articles on the subject, located at Phil Stahl articles

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