03/15/2026
Four digital evidence mistakes that family law attorneys make — and what each one actually costs.
Digital evidence now appears in virtually every contested family law matter. The attorneys who handle it well are not necessarily more technologically sophisticated than those who do not. They simply understand three federal statutes that most family law practitioners have never had reason to read — and they counsel their clients before the damage is done, not after.
Mistake one: subpoenaing the platform for message content.
The subpoena will not work. The Stored Communications Act (18 U.S.C. § 2701 et seq.) prohibits electronic communication services from disclosing the content of stored messages in response to a civil subpoena. Facebook has said so explicitly in its legal process guidelines. Google says the same. Every major platform will decline to produce message content in a civil matter, and they are legally correct to do so.
What the SCA does permit is production of non-content data — account subscriber information, IP addresses, login timestamps. That data can be useful, but it is not the same as message content, and conflating the two is a discovery error that costs time and credibility.
The correct approach is to direct the request at the opposing party, not the platform. Courts have ordered civil litigants to consent to production of their own data, or to produce it directly using the platform's native data download tools. The motion to compel — if one becomes necessary — runs through the court's discovery rules, which the court controls, rather than through a federal statute, which it does not. That is a structurally stronger position from the first filing.
The cost of getting this wrong: weeks of delay while the platform declines to comply, opposing counsel flags the procedural error, and the window for obtaining the underlying evidence continues to close.
Mistake two: not issuing a preservation demand on day one.
Text message content does not live at the carrier. Most carriers delete SMS content within 24 to 72 hours of transmission. By the time a subpoena reaches a carrier, the messages are gone. The only reliable sources of text message content are the devices themselves — and, where enabled, cloud backup services such as iCloud or Google Drive, which may sync full message history.
A preservation demand must go to opposing counsel at the outset of litigation — specifically identifying text message content, backup accounts, and the physical device as items subject to the duty to preserve. Without it, the opposing party has no formal notice of an obligation to preserve, and spoliation arguments become harder to sustain if messages later disappear.
The demand also functions offensively. Courts have become increasingly willing to draw adverse inferences — and in some cases impose sanctions — when a party deletes communications after litigation has commenced. A well-timed preservation demand, served early, puts the opposing party on notice and makes any subsequent deletion significantly more consequential. Mass deletions timed to a divorce filing are rarely treated as coincidence.
The cost of getting this wrong: the evidence that would have won a custody or support argument is gone, and so is the ability to argue spoliation persuasively, because the duty to preserve was never formally triggered.
Mistake three: not auditing shared digital accounts at intake.
Shared Apple IDs, shared Google accounts, and family location-sharing applications give spouses continuous passive access to each other's location, calendar, photographs, and in some configurations, messages — without either party doing anything affirmative. When a marriage ends, those connections frequently remain active simply because nobody changed the settings.
This creates two simultaneous problems. The client who is being passively monitored is disclosing their location and communications to an adverse party throughout the litigation — including, potentially, communications with counsel routed through a shared device or account. The client who is doing the passive monitoring faces a different risk: continued use of that access after separation, particularly after litigation begins, starts to look like surveillance rather than inadvertence, and can implicate state stalking statutes depending on the facts.
A systematic digital account audit at intake takes fifteen minutes. It should cover every shared account, every linked device, every family-sharing application, and every cloud backup that may sync across devices. It should also address where the client plans to communicate with counsel going forward, and whether any existing accounts or devices create privilege risks.
The cost of getting this wrong: the client's litigation strategy is visible to the opposing party in real time, or the client's own passive monitoring of a spouse becomes the centerpiece of an adverse motion instead of the evidence they were trying to gather.
Mistake four: accepting digital evidence without asking how the client got it.
A client forwards screenshots of a spouse's private messages. The instinct is to use them. The question that must come first is how the client obtained them — because the answer determines whether the evidence is usable, whether the client has civil liability, and in some cases whether the client has committed a federal crime.
The Computer Fraud and Abuse Act (18 U.S.C. § 1030) prohibits intentional access to a computer without authorization. Courts applying the Act to domestic situations have generally held that knowing a password is not the same as having authorization to use it for all purposes. A spouse who logged into the other party's private email or social media account — even using a known password, even on a shared device — may have crossed the line from permissible access to unauthorized access. The Electronic Communications Privacy Act (18 U.S.C. § 2511) adds a parallel prohibition on interception of electronic communications without consent.
The narrow safe harbor: information that is genuinely public or freely accessible without any affirmative act of circumvention. Screenshotting a public Facebook post is not a CFAA violation. Logging into the account to reach private messages is. An email printed and left on a shared printer is different from accessing a spouse's email account to find it. The line is context-dependent, but it is a real line, and the consequences of crossing it — evidence suppression, civil liability, a motion that reframes the entire case — are concrete.
The cost of getting this wrong: the evidence is suppressed, the client faces a counterclaim, and opposing counsel now controls the narrative at the next hearing — not about the underlying conduct the evidence was meant to prove, but about how the evidence was obtained.
The pattern underneath all four mistakes.
None of these errors require sophisticated technology to avoid. They require knowing that three federal statutes — the SCA, the CFAA, and the ECPA — apply to civil family litigation in ways that the statutes' original drafters almost certainly did not anticipate, and that the platforms, the courts, and opposing counsel have largely figured out while the family law bar has been slower to catch up.
The attorney who understands this framework counsels clients before they act, structures discovery correctly from the outset, and never hands opposing counsel a procedural gift that did not need to be given. In contested matters where credibility is the currency, that discipline compounds quickly.
Jeremy R. Miller · Family Law & Privacy Counsel · Pearson Butler · South Jordan, Utah · 385.276.4717
