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Can A Lawyer Claim “work product” To Prevent Opposing Counsel From Obtaining A Digital Copy of the Submissions filed with the Court?

work product

Can A Lawyer Claim “work product” To Prevent Opposing Counsel From Obtaining A Digital Copy of the Submissions filed with the Court?

Recently, a hotly contested family case resulted in a several day trial at the Ontario Superior Court.

Both counsel produced hard copies (paper copies) of their case briefs and written submissions and arguments at the end of the trial. Counsel for the husband also produced a digital copy. Counsel for the wife requested that a digital copy of what was submitted to the court should also be produced to the wife.

Counsel for the husband indirectly stated that since he was an officer of the court that the wife would have to accept a hard copy only. Husband’s counsel also mentioned that the digital copy he submitted to the Court was his “work product” and was concerned his arguments may be reproduced and used against his clients in future cases.

Given the level of distrust between the litigants and that the wife required the digital copy to complete her file; wife’s counsel indicated that as a matter of good practice the information, submissions, cases and arguments submitted to the court by one party should be also produced to the opposing party in the same format as it was produced to the court.

Wife’s counsel filed a motion with the trial Judge seeking production of the digital information filed with the Court by the husband. The trial judge agreed with the wife and ordered:

“The court received both paper and electronic copies of the respondent’s closing and case briefs. No exhibits or evidence were received in electronic form. I see no reason why the electronic copy should not be available to the applicant, as was the paper copy. Order to go that the respondent provide to the applicant an electronic copy of his closing and case briefs within thirty days of release of this decision.”

Accordingly, counsel are required to produce to the opposing party information filed with the court in the same format as filed with the Court. There is no “work product” defence or argument that justifies withholding production.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit our main site.

Be Careful About Who Your “Friends” Are

Be Careful About Who Your “Friends” Are; Facebook as a Source of Evidence in Family Law: Part 4

In recent months I have written on a few occasions about the use of Facebook in family law matters, for example situations where one ex-spouse was using it to gather unflattering information about the other, usually as a tool in a custody dispute. Reference:

Facebook as a Source of Evidence In Family Law: Part 1

Facebook as a Source of Evidence in Family Law: Part 2 – More About Facebook in Family Cases

and

 Facebook as a Source of Evidence in Family Law: Part 3

The primarily lesson to be learned from those scenarios is that the social media-based access to our private lives that we give others can be used and misused in unanticipated ways.

Yet another illustration of this concept occurs came to my attention recently, in a situation involving a fellow lawyer whose imprudent choice of whom to “befriend” on Facebook led to the misappropriation and unauthorized use of pictures of himself.

The scenario was described by legal marketer Susan Van Dyke, whose client was a partner in a law firm. As a means of promoting himself and the firm, the lawyer created a Facebook profile and added many Friends to his list. Amongst them was a reporter.

This reporter happened to be doing some writing for the law firm’s media relations campaign, which included mention of this lawyer. However, the reporter was unsatisfied with the photograph provided by the lawyer’s publicist. The reporter then took it upon herself to “hunt for more interesting photos” on the lawyer’s Facebook profile. Fortunately, the photo that was eventually published to accompany the reporter’s written article was not an embarrassing one (it showed the lawyer standing next to a high-profile public person), but it was certainly not the one that had been approved and endorsed by the lawyer himself.

This incident shows the importance of taking care to ensure that the photos and other information we make available on social media sites such as Facebook, Twitter and even LinkedIn has been carefully vetted to ensure that it cannot embarrass us or harm our reputation. (And this includes not only those images that we upload ourselves, but also images posted by others in which we have been “tagged.”)

Migrating this to the realm of family law disputes, it easy to imagine an ex-spouse (or soon-to-be-ex) sifting through photos of the other spouse on Facebook, looking for images that are damaging to his or her reputation or legal position. Especially for an ex-spouse who is intent on painting the other spouse in an unflattering light in court (for example to gain leverage in a custody or access dispute, or to disprove the other spouse’s claims of physical inability to work so as to preclude an increased need for spousal support) Facebook and other social media sites are a free and fertile source of potential ammunition.

But whatever the unanticipated use might be, the bottom line is this: if an image or information has been posted, it available for public consumption and can be used against you, even by a friend, but especially by an ex-spouse or ex-partner.

Susan Van Dyke offers several “essential Facebook tips” to help avoid having information or photos misused in this way. These include:

1) knowing who your “Friends” are;

2) avoiding posting anything that can come back to haunt you;

3) checking your Facebook security settings;

4) scanning all social media sites for photos in which you are tagged (and requesting that they be removed if they are not flattering);

5) creating a separate Facebook page just for family and personal photos.

Facebook is here to stay — and with all of its unforeseen dangers. Those who are embroiled in family law disputes should be particularly vigilant about what information they are making available, and how it is being used.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at ww.RussellAlexander.com

Remember you can also visit us on Facebook at www.facebook.com/RussellAlexanderFamilyLawyers

Facebook as a Source of Evidence in Family Law: Part 3

Facebook as a Source of Evidence in Family Law: Part 3 — Even More about Facebook in Family Law Cases

In our previous Blogs Facebook as a Source of Evidence In Family Law: Part 1 and Facebook as a Source of Evidence in Family Law: Part 2 – More About Facebook in Family Cases , we discussed the use of Facebook in family law cases, especially in situations where one ex-partner tries to use the other’s Facebook entries and pictures as evidence against them, usually to disparage them in connection with child custody and access disputes.

Now, in a U.S. case, a Connecticut judge has ordered that a divorcing couple exchange passwords for their respecting Facebook accounts, and for any dating websites on which they were active members.

The unusual September 2011 ruling was part of the divorce trial of Stephen and Courtney Gallion, which included a custody dispute over the couple’s children.     The husband was asking the court to award him full custody.

The password exchange was ordered by the court after the parties’ lawyers argued that mutual unrestricted access could provide evidence which could be used in the parties’ custody matter.    The order was framed as part of the customary obligation on litigants to relinquish any “responsive material” to the other, and was extended in this case to encompass access to the social networking sites.   More to the point, the husband hoped that by having access to the wife’s Facebook, MySpace, Match.com and EHarmony accounts, he would be able to collect evidence that she was not the appropriate custodial parent for the children.

The judge imposed certain stipulations, specifically that the password exchange should be carried out only by the parties’ lawyers, and that neither spouse may post messages to Facebook or the dating sites in the guise of or purporting to be the other spouse.  They were also prohibited from deleting any posts or messages from their own sites.

The judge’s order – which does not yet appear to have a counterpart amongst Canadian judgments – raises interesting non-family-law related questions such as:

1) whether it violates the terms of service of social networking sites (which prohibits the sharing of passwords); and

2) whether the order allows for violation of privacy because it gives each spouse unfettered access to private information such as the other’s “friends” list.

Nonetheless, it is an interesting development in the ever-expanding realm of family cases that involve Facebook and other social networking sites.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at  www.RussellAlexander.com