Electronic Surveillance in Family Law

As everyone is aware, the use of electronic technology in business as well as people’s personal lives has grown beyond anyone’s imagination in recent years. With this rise in the use of various forms of technology, people often forget that what you use a computer for and what you store on a computer are just as relevant, and just as easily documented,
as the written or spoken word on paper or in conversation. This can be particularly relevant in family law where child custody and parental fitness are routine questions for the court.

For several years now, use of information obtained on the Internet or other electronic media has been used in and out of court for a variety of reasons, not the least of which being impeachment material for testifying witnesses. But is all of the potential evidence obtained through computer searches fair game, or does the manner in which it was collected give rise to admissibility issues as well as ethical, or even criminal, concerns for lawyers who are advising their clients on the collection of such information? Can spouses who are still married and have access to their partner’s various computers, cell phones, emails, texts and other electronic devices take advantage of this opportunity with impunity, or are there regulations, guidelines or road signs as to what is permissible and what is not?

Tennessee and federal wiretapping laws restrict a party’s ability to intercept electronic communications. The United States Code makes it illegal for any party to intentionally intercept any wire, oral or electronic communication.[1] Similarly, Tennessee statute prevents the intentional interception of such communication as well.[2] It is unlikely that any party in a family law case would be able to lawfully intercept such communication, to say nothing of the difficulty in intercepting such communication, lawful or otherwise.

However, the above cited statutes only deal with the actual interception of such communication while en route, not communications that have already been received and stored, such as emails in an inbox that have already been viewed but not erased. A more plausible scenario in a family law case would be a spouse obtaining electronic communication from the other spouse’s storage device since they are still cohabitating, or they share household items like a computer. In such a situation, the manner in which that electronic communication was obtained becomes a matter of evidentiary and ethical importance to the party’s attorney, and the attorney must consider carefully whether to use these communications depending on the manner in which they were obtained by the client.[3] The Tennessee Personal and Commercial Computer Act[4] and the United States Code[5] additionally make it a criminal offense to access stored communications without the requisite authorization. While these statutes may seem clear cut in an employment setting, or when an outside party hacks someone’s home email account, it is not nearly so certain in a divorce situation since the adverse parties have overlapping control, access and ownership of devices and, potentially, data as well.

In a guiding case from New Jersey, a wife in a divorce action had her private investigation firm take, copy and access emails from her husband’s email account that were located on the family computer to which they jointly had access. The wife did not use, nor ultimately did she need, the password to her husband’s email account to access his emails wherein she located evidence of infidelity on his part. The court ultimately ruled that this activity did not infringe on either federal or New Jersey wiretapping statutes, and it also ruled that, since the wife had not used the husband’s password without permission, but rather accessed the emails that had been stored on a computer that she did have permission to access, there was no improper conduct on her part and the communications were admissible.[6] Conversely, there is a recent Florida case where a wife installed a spyware program on her husband’s computer, without his knowledge or consent, during a pending divorce proceeding, thereby obtaining emails and images being transferred to her husband’s computer as they were being transmitted. The trial court ruled, and the appellate court affirmed, that since the evidence was illegally obtained by the wife in violation of the Florida wiretapping act, the evidence was inadmissible in the proceeding before the court.[7]

Cases such as these appear to set some basic ground rules for admissibility and use of electronically stored information from another party without that party’s consent. However, they do little to instruct or help a lawyer trying to determine how to advise a client on the potential collection of such evidence and how to avoid running afoul of ethical and criminal entanglements. Clearly a lawyer who advises a client to obtain information from a spouse in a questionable manner is opening themselves up for sanctions. However, the above situations were created by the client without the knowledge or direction of their attorney (presumably). How should a family law practitioner advise a client who suggests copying a spouse’s hard drive for discoverable material? Is it possibly ineffective lawyering not to advise a client to attempt to access shared computers in the hopes of obtaining favorable or incriminating evidence against a soon to be ex-spouse? Additionally, attorneys advising clients must also emphasize that electronically stored evidence must not be removed or destroyed purposefully or a court can levy highly detrimental and punitive sanctions and penalties for spoliation of evidence.[8]

Scenarios such as this are presuming that traditional discovery will be insufficient to obtain all of the electronically stored information in its original form. Both the Tennessee Rules of Civil Procedure[9] and the Federal Rules of Civil Procedure[10] provide for the discovery of electronically stored information. Certainly during the formal discovery process, an attorney should request, with specificity, that they are seeking disclosure of electronically stored material and tailor their request as narrowly as possible as unduly burdensome discovery production of electronically stored information has been excluded from discovery requirements.[11,12] Given the volume of electronic data available, a cost-benefit analysis for the client needs to enter into the lawyer’s thought process when making a formal request. Additionally, a client should understand that whatever is requested of the opposing party will likely be requested from the client in return. In addition to formal discovery, a lawyer should advise a client to avail themselves of access to all social media and other information that is open to public viewing since this information is not protected by any privacy right, but may well be left out of the response to formal discovery, or the content, intentionally or otherwise, may be altered on a frequent basis.

From the case law and statute, it appears that a lawyer would be on safe grounds advising a client to access any and all electronic storage devices to which they have shared access. Once possessed, anything stored on that device that is not protected by additional, personalized safeguards of an individual user, would be deemed properly obtained and admissible in court. Beyond that, it would be much safer for the client, the lawyer and the client’s case to access electronically stored information of the opposing party through formal channels like the discovery process.

Notes

  1. 18 U.S.C. § 2510 et seq.
  2. Tenn. Code Ann. § 39-13-601.
  3. Gaetano Ferro, Marcus Lawson & Sarah Murray, “Electronically Stored Information: What Matrimonial Lawyers and Computer Forensics Need to Know,” 23 J. Am. Acad. Matrim. Law, no. 1 (2010), p. 3-5.
  4. Tenn. Code Ann. § 39-14-601 et. seq.
  5. 18 U.S.C § 2701 et. seq.
  6. White v. White, 781 A.2d 85, 344 N.J.Super. 211 (2001), pp. 87-91.
  7. O’Brien v. O’Brien, 899 So.2d 1133 (2005), pp. 1136-1138.
  8. Kucala Enterprises Ltd. v. Auto Wax Company Inc., 2003 WL 21230605, N.D. Illinois. Court ordered plaintiff’s complaint dismissed and plaintiff to pay attorney’s fees and costs after he was discovered using a program named “Evidence Eliminator” on his computer prior to turning the computer over during discovery.
  9. Tennessee Rules of Civil Procedure 26.02(1).
  10. Federal Rules of Civil Procedure 26(b).
  11. T.R.C.P. 26.02(1) “A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.”
  12. F.R.C.P. 26(b)(2)(B) “A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.”

Marlene Moses MARLENE ESKIND MOSES is the principal and manager of MTR Family Law PLLC, a family and divorce law firm in Nashville. She is a past president of the American Academy of Matrimonial Lawyers. She has held prior presidencies with the Tennessee Board of Law Examiners, the Lawyers’ Association for Women and the Tennessee Supreme Court Historical Society. She is currently serving as a vice president of the International Academy of Matrimonial Lawyers. The Tennessee Commission on Continuing Legal & Specialization has designated Moses as a Family Law Specialist; she is board certified as a Family Law Trial Specialist.

MANUEL BENJAMIN RUSS earned a bachelor of arts from Johns Hopkins University, a master of arts from University College London, and a law degree from the Emory University School of Law. He is in private practice in Nashville focusing primarily on criminal defense.