In my January 12, 2011, seminar presentation at the 45th Annual Heckerling Institute on Estate Planning in Orlando, Florida, I spoke about estate planning for passwords, online accounts, and digital property. As part of that seminar, I spoke and wrote about preserving potential “electronic evidence,” including data stored in cell phones, smartphones, computers, and storage media during a probate estate administration or trust administration. This also applies to guardianships and conservatorships.
If there is a current or potential future law enforcement investigation or civil suit involving the incapacitated or deceased person, it is important to preserve potential electronic evidence to avoid obstruction of justice or contempt charges. Simply turning on and booting up a smartphone or computer can overwrite or wipe out data that may be useful in a forensic examination. So, consider using an independent computer forensics company to make an exact image copy of the storage media to preserve the original data and to preserve the chain of custody of the electronic evidence. If the incapacitated or deceased person is charged with a crime, the family members and fiduciaries should consult with a criminal defense attorney about available objections and how to assert and preserve privileges in the investigation.
Today, I noticed that the Electronic Frontier Foundation released a quiz about your rights if the government attempts to search your cell phone or computer. After you take the quiz, you can read their summary of your rights in a government search of your digital property, with citations to the most recent cases and authorities. The EFF also has a one–page handout with tips for talking with police when they ask to search your cell phone, smartphone, computer, or digital property. This handout also may be useful for personal representatives (executors), trustees, guardians, and conservators if they believe there is a current or potential future law enforcement investigation or civil suit involving the incapacitated or deceased person.
