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Family Law and Digital Evidence: Preserving, Presenting, and Persuading

In an ever-increasing digital world, it is imperative for all lawyers, but especially family law lawyers, to have a good working knowledge of electronically stored information (ESI). Our clients use their electronic devices to communicate, store information, and conduct business. Critical evidence is often stored digitally, and understanding how it is stored, how to obtain it, and how it is treated in court is imperative for every family law lawyer. This presentation will walk through all aspects of ESI to allow family law counsel to best prepare their cases for maximum effectiveness.

Topics covered include:

Family Law Discovery Law Practice Trial Skills

Agenda:

Definition of Electronically Stored Information (ESI)

What is ESI?
Where is ESI found?

Civil Rules of Procedure & ESI

Discussion of Federal Rules of Civil Procedure and ESI

ESI Litigation Issues

Getting Informed & Educated

Starting points and resources for becoming educated on ESI

Preservation of ESI

Discussion of litigation hold (preservation) letters
Examples of preservation letters
Duty to preserve ESI

ESI at Trial

Discovery of ESI
Consideration of what to include and exclude when issuing ESI discovery
Social media discovery
Discovery objections
Spoilation

Legality of Obtaining

State and federal criminal law considerations
Potential of civil liability

Rules of Evidence

Hearsay
Admission of specific forms of ESI

Sanctions

Discovery sanctions for failing to produce

Questions & Answers (as time permits)

Duration of this webinar: 60 minutes

Originally broadcast: August 14, 2025 1:00 PM PT

Webinar Highlights

This webinar is divided into section summaries, which you can scan for key points and then dive into the sections that interest you the most.

00:00 Introduction

Kellam Parks is introduced as the speaker, with a background in family law and expertise in cybersecurity and data privacy. Kellam outlines the focus of the webinar on electronically stored information (ESI) in family law, covering federal rules and practical applications. He acknowledges the use of text-heavy slides as a reference guide for participants.

04:45 Understanding ESI in Family Law

Kellam explains the concept of ESI, which includes various forms of electronic data relevant to family law cases. He discusses the importance of understanding federal rules of civil procedure as a guide, while noting state-specific variations. ESI can be found on various devices and platforms, including cloud servers and AI devices. Kellam highlights the significance of Rule 26 in discovery, allowing for the discovery of non-admissible information. He discusses strategic considerations in discovery, emphasizing proportionality and the importance of understanding the scope of ESI.

09:00 Discovery & Strategic Considerations

Kellam discusses Rule 33, which describes the production of business records in response to interrogatories. He explains Rule 34, which pertains to requests for the production of documents and ESI, emphasizing the importance of specifying formats. Kellam advises on the importance of understanding how ESI is stored and the relevance of different types of evidence. He suggests involving IT professionals for high-asset divorces to access and preserve digital evidence. Kellam provides a checklist from the U.S. District Court for the Northern District of California as a resource for handling ESI.

14:30 Preservation of Evidence & Litigation Holds

Kellam emphasizes the importance of preservation letters in family law cases to prevent the loss or destruction of evidence. He recommends Craig Ball's preservation guide as a resource for drafting litigation hold letters. Kellam discusses the need to follow up with clients and third parties to ensure compliance with preservation obligations. He highlights the importance of understanding the scope and format of ESI before issuing discovery requests. Kellam advises on strategic considerations in discovery, including the use of AI to identify potential sources of evidence.

20:00 Social Media Discovery & Spoliation

Kellam discusses the discoverability of social media in family law cases, emphasizing its potential relevance to claims and defenses. He explains the importance of tailored discovery requests to avoid objections and ensure relevance. Kellam highlights the challenges of obtaining private social media content and the potential need for protective orders. He advises caution when considering subpoenas to social media platforms due to potential costs and legal challenges. Kellam discusses spoliation and the ethical obligation to preserve evidence, referencing ABA Rule 3.4.

31:30 Accessing & Admitting Digital Evidence

Kellam discusses the legal and civil liability implications of accessing digital devices, emphasizing the importance of avoiding criminal liability. He explains Virginia's law on computer trespass and the Federal Stored Communications Act, highlighting potential penalties. Kellam advises on the importance of understanding the legality of accessing digital information and the nuances involved. He discusses hearsay and its exceptions, particularly in the context of ESI, emphasizing the importance of cross-examination. Kellam explains the business records exception to hearsay and the process for admitting such records into evidence.

43:00 Authentication & Practical Tips

Kellam discusses the authentication of ESI, including certified records, and the best evidence rule. He advises on the use of summary charts to present voluminous data in court. He discusses the authentication of emails and texts, highlighting the use of circumstantial evidence and expert testimony. Kellam provides practical tips for obtaining and preserving digital evidence, including the use of forensic tools.

Please note this AI-generated summary provides a general overview of the webinar but may not capture all details, nuances, or the exact words of the speaker. For complete accuracy, please refer to the original webinar recording.

Speaker

Kellam T. Parks Member
Parks Zeigler, PLLC

Kellam T. Parks is a managing member of Parks Zeigler, PLLC, headquartered in Virginia Beach, which is a paperless, technologically driven law practice with three offices across Virginia and North Carolina. He obtained his B.A. in Philosophy with Honors, Summa Cum Laude from St. Andrews University in North Carolina and earned his J.D. from the Marshall-Wythe College of Law at William and Mary. Kellam is a Tidewater native and has been practicing there for 25 years. Read More ›

Continuing Legal Education (CLE) Credits

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California CLE

Status: Approved

Credits: 1.00 Technology in the Practice of Law

Earn Credit Until: June 30, 2026

New Jersey CLE

Status: Approved

Credits: 1.20 General

Earn Credit Until: September 9, 2026

North Carolina CLE

Status: Approved

Credits: 1.00 Technology Training

Earn Credit Until: February 28, 2026

Texas CLE

Status: Approved

Credits: 1.00 General

Earn Credit Until: July 31, 2026

This presentation is approved for one hour of Technology in the Practice of Law CLE credit in California, and one hour of Technology Training CLE credit in North Carolina. This program has been approved by the Board on Continuing Legal Education of the Supreme Court of New Jersey for 1.20 hours of total CLE credit. This course has been approved for Minimum Continuing Legal Education credit by the State Bar of Texas Committee on MCLE in the amount of 1.00 credit hours.

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