Discovery of Electronically Stored Information in PA Divorces

One of the up-and-coming issues in all areas of civil practice in Pennsylvania involves the discovery of electronically stored information. In 2012, Pa. R.C.P. 4009.1 was amended to address the issue of electronically stored matter. Under this Rule, parties may “inspect, copy, or sample” information stored electronically which constitutes “matter” that is otherwise discoverable under other Pennsylvania Rules of Civil Procedure. However, this issue has not arisen in Pennsylvania with regard to domestic matters and divorces.

Our blog post today will discuss the case of Parker v. Coletti in the Court of Common Pleas of Allegheny County which was recently decided by Judge Bubash on March 19, 2013. This opinion addresses the issue of discovery of electronically stored information in a family law matter

In Parker v. Coletti, the parties were going through a divorce matter in Allegheny County, PA. Husband filed a request for discovery on Wife, wherein he made a specific request to inspect/copy the hard drive of the Dell computer that was removed from the parties’ marital residence in 2011. Wife objected to this request, and the matter was assigned to a Special Discovery Master. The Master directed that discovery of the hard drive was permissible, but with particular instructions as to how this should be done. The Master ensured that privileged information between Wife and her attorney was not disclosed, as well as stating that Husband was permitted to discover any information stored on the hard drive by Wife after the parties’ date of separation.

The court classified this hard drive as “marital property” for discovery purposes, and stated that because had access to this marital property, Husband shall too have access to the hard drive, given that certain protocols are in place as were provided for by the Master. Interestingly, the court stated that there is no current case law precedent in Pennsylvania on this issue of the discoverability of electronically stored information in a divorce matter. A New York court, however, found that the memory on a computer is “akin to a file cabinet” and should be discoverable in a divorce matter where the property is considered marital.

In summary, the court in Parker v. Coletti decided that as long as electronically stored information is considered marital property, discovery of that property is permissible in a divorce matter so long as there are procedures and protocols in place that protect any privileged or confidential communications contained within the electronically stored document(s).