6

If there's a criminal case, the police can get a warrant to access someone's electronic communications without the suspect's consent.

What about a civil case (if it makes a difference, let's say divorce as the question arose from thinking about that topic).

If person A sues person B, and their lawyer says "there's evidence that B did something bad, in B's email" (in case of divorce, probably adultery evidence), and person B's layer says "they made it up", can A's lawyer - or the judge - demand and enforce access to B's email, social media or other electronic communications?

Jurisdiction is US, if a state matters let's say NJ

2 Answers 2

7

Yes. There is both a duty to disclose and permit inspection of certain records (e.g. those that adversely affect either party's case or support another party's case) and a right for the court to demand access to other specific records.

In the applicable rules are found in Part 31 of the Civil Procedure Rules. For example:

Standard disclosure

31.6 Standard disclosure requires a party to disclose only– (a) the documents on which he relies; and (b) the documents which – (i) adversely affect his own case; (ii) adversely affect another party’s case; or (iii) support another party’s case; and (c) the documents which he is required to disclose by a relevant practice direction.

Specific disclosure

(1) The court may make an order for specific disclosure or specific inspection.

(2) An order for specific disclosure is an order that a party must do one or more of the following things – (a) disclose documents or classes of documents specified in the order; (b) carry out a search to the extent stated in the order; (c) disclose any documents located as a result of that search.

Party's control

31.8 (1) A party’s duty to disclose documents is limited to documents which are or have been in his control.

(2) For this purpose a party has or has had a document in his control if – (a) it is or was in his physical possession; (b) he has or has had a right to possession of it; or (c) he has or has had a right to inspect or take copies of it.

Right of inspection

31.3 (1) A party to whom a document has been disclosed has a right to inspect that document except where – (a) the document is no longer in the control of the party who disclosed it; (b) the party disclosing the document has a right or a duty to withhold inspection of it, or (c) paragraph (2) applies.

(2) Where a party considers that it would be disproportionate to the issues in the case to permit inspection of documents within a category or class of document disclosed under rule 31.6(b) – (a) he is not required to permit inspection of documents within that category or class; but (b) he must state in his disclosure statement that inspection of those documents will not be permitted on the grounds that to do so would be disproportionate.

Inspection and copying

31.15 Where a party has a right to inspect a document– (a) that party must give the party who disclosed the document written notice of his wish to inspect it; (b) the party who disclosed the document must permit inspection not more than 7 days after the date on which he received the notice; and (c) that party may request a copy of the document and, if he also undertakes to pay reasonable copying costs, the party who disclosed the document must supply him with a copy not more than 7 days after the date on which he received the request.

And, in case there's any doubt that this applies to electronic records:

Meaning of document

31.4 In this Part – ‘document’ means anything in which information of any description is recorded;

1
  • Under "Right of inspection" what is the specific meaning of "disproportionate"? Is this basically a stipulation that the purpose of disclosure is to help establish the facts of the current case, and not for other unrelated uses? Dec 3, 2022 at 18:55
7

If person A sues person B, and their lawyer says "there's evidence that B did something bad, in B's email" (in case of divorce, probably adultery evidence), and person B's layer says "they made it up", can A's lawyer - or the judge - demand and enforce access to B's email, social media or other electronic communications?

Yes. If the electronic asset is in the control of person B, person A (or their lawyer acting on their behalf) has a legal right to demand that it be turned over (subject to certain limitations like attorney-client privilege).

If Person B does not comply they can be penalized and forced to pay monetary sanctions in the lawsuit.

Person A (or their lawyer) can also subpoena the electronic information directly from the third-party providing the online service in most cases, although it is usually cheaper and faster to just demand it from the other party in the lawsuit.

This is routinely done in divorces where there are stakes (either related to child custody, or to marital fault, or to assets and alimony) that are significant. It is not routinely done in no fault divorces of couples with no children who are allocating their impoverishment between them and had a short marriage.

7
  • I'm surprised that a random lawyer for a random person can subpoena a 3rd party provider. What gives them the legal basis to do so? They aren't government.
    – user17760
    Dec 2, 2022 at 8:23
  • 15
    "a random lawyer for a random person can subpoena a 3rd party provider. " It's not a random lawyer; it is an attorney for the person. It is not a random person, it is a party to the case. They have to convince a court that the 3rd party has evidence which is likely to be relevant to the case, and once they have done that, the court will order the evidence handed over. Dec 2, 2022 at 9:43
  • 2
    @MartinBonnersupportsMonica - ah, so it's the court ordering it, NOT lawyer for A. That makes a lot more sense. Thanks
    – user17760
    Dec 2, 2022 at 15:47
  • 3
    In many jurisdictions, including mine, lawyers have the authority to issue subpoenas in connection with pending cases without court approval or involvement that have the same effect as court orders. This is part of the role of the lawyer as an officer of the court. The right to compulsory production of evidence from unrelated third-parties is a constitutional right in many circumstances.
    – ohwilleke
    Dec 2, 2022 at 20:51
  • 3
    @ohwilleke While a attorney to one of the parties can issue the subpoena, if the other side or the party producing the records has a problem with it, they will file an objection or motion to quash the subpoena, at which point the issue goes before the trial judge. So the ability for an attorney to issue a subpoena is just to save time when all sides agree on it. (See page 5 of your second link)
    – user71659
    Dec 2, 2022 at 22:53

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .