civil-law evidence divorce warrant
Can one&#39;s personal electronic accounts be forced to be made accessible in a civil case like divorce?
<p>If there's a criminal case, the police can get a warrant to access someone's electronic communications without the suspect's consent.</p>
<p>What about a civil case (if it makes a difference, let's say divorce as the question arose from thinking about that topic).</p>
<p>If person A sues person B, and their lawyer says &quot;there's evidence that B did something bad, in B's email&quot; (in case of divorce, probably adultery evidence), and person B's layer says &quot;they made it up&quot;, can A's lawyer - or the judge - demand and enforce access to B's email, social media or other electronic communications?</p>
<p>Jurisdiction is US, if a state matters let's say NJ</p>

<p>Yes. There is both a <em>duty</em> 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 <em>right</em> for the court to demand access to other specific records.</p>
<p>In <a href="/questions/tagged/england-and-wales" class="post-tag" title="show questions tagged &#39;england-and-wales&#39;" aria-label="show questions tagged &#39;england-and-wales&#39;" rel="tag" aria-labelledby="england-and-wales-container">england-and-wales</a> the applicable rules are found in <a href="https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part31" rel="noreferrer">Part 31 of the Civil Procedure Rules</a>. For example:</p>
<h3>Standard disclosure</h3>
<blockquote>
<p>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.</p>
</blockquote>
<h3>Specific disclosure</h3>
<blockquote>
<p>(1) The court may make an order for specific disclosure or specific
inspection.</p>
<p>(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.</p>
</blockquote>
<h3>Party's control</h3>
<blockquote>
<p>31.8 (1) A party’s duty to disclose documents is limited to documents which are or have been in his control.</p>
<p>(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.</p>
</blockquote>
<h3>Right of inspection</h3>
<blockquote>
<p>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.</p>
<p>(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.</p>
</blockquote>
<h3>Inspection and copying</h3>
<blockquote>
<p>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.</p>
</blockquote>
<p>And, in case there's any doubt that this applies to electronic records:</p>
<h3>Meaning of document</h3>
<blockquote>
<p>31.4 In this Part – ‘document’ means anything in which information of any description is recorded;</p>
</blockquote>

<blockquote>
<p>If person A sues person B, and their lawyer says &quot;there's evidence
that B did something bad, in B's email&quot; (in case of divorce, probably
adultery evidence), and person B's layer says &quot;they made it up&quot;, can
A's lawyer - or the judge - demand and enforce access to B's email,
social media or other electronic communications?</p>
</blockquote>
<p>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).</p>
<p>If Person B does not comply they can be penalized and forced to pay monetary sanctions in the lawsuit.</p>
<p>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.</p>
<p>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.</p>
