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Electronic evidence guidelines in divorce cases still being defined.

After finding a love letter that her husband, William, had written to another woman, Mary White hired an investigative research company to copy his computer files--containing e-mail correspondence between him and his girlfriend as well as Internet images he had accessed--from the family's hard drive without his permission. She sought to use this evidence in divorce proceedings against him.

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William filed a motion to suppress the evidence, claiming that his wife had invaded his privacy and violated New Jersey's wiretap act. But in the state's first ruling specifically interpreting the statute, Judge David Issenman denied the motion, noting that William shared the computer, which was located in a family room, with other family members. Issenman said that William could have used simple privacy protection measures but did not, and noted that the wiretap act applies to communications currently being transmitted rather than those that have already been sent and saved. (White v. White, 781 A.2d 85 (NJ. Super. 2001).)

In the seven years since that case examined this emerging issue, the popularity and accessibility of the Internet have continued to grow, and use of electronic evidence in lawsuits has increased, including in divorce cases. Family lawyers report that they are seeing more divorce cases in which e-mails are produced in discovery, as well as cases in which spouses request that other types of online activities, such as those tracked by spyware programs, be admitted as evidence.

In a recent American Academy of Matrimonial Lawyers (AAML) surveyor 600 attorneys, 88 percent noted that the number of cases introducing electronic data as evidence has increased in the past five years. E-mail is the form of electronic evidence most often used in divorce cases, while text or instant messaging and Internet browsing history are both close behind in second place, according to the survey. Global-positioning-system data ranks third.

The White case involved a relatively simple method of accessing another person's computer records: Mary White's investigator copied her husband's unprotected messages stored on the family computer's hard drive. In other cases involving more sophisticated technology, spouses have come to court with evidence they obtained by using spyware to monitor their partners' e-mail, instant messages, and Web site visits. The admissibility of data found via spyware is still being hotly debated.

"There is very little guidance as to the legality of the use of spyware," East Brunswick, New Jersey, attorney Theodore Sliwinski notes on his firm's Web site. "Attempts [in the form of proposed legislation] have been made to apply the antiwiretap laws to spyware, but they have not fared well."

The use of spyware "is an area of concern and increasing scrutiny" in civil cases, said Armin Kuder, a Washington, D.C., attorney and past president of the city's AAML chapter. "Even more complex is the fact that a spouse may [review] clearly private e-mail by using spyware. The evidence may be inadmissible, but what is known in criminal law as the 'fruit of the poisonous tree' may not be so evident in the intimacy of a family."

William Friedlander, a Waverly, New York, attorney, said what constitutes a privacy violation can be less than clear if spouses are using the same e-mail account or Internet domain.

Kuder concurred: "A major area of dispute has involved the fact that the 'owner' of an [Internet service provider] account usually can access the e-mail of all users under the account," he said. "Spouses [often] are not aware, but it is arguably a known fact."

In one divorce case involving evidence obtained via spyware, Beverly O'Brien sought to admit computer data showing that her husband was communicating online with another woman as they played Internet dominoes. The trial court deemed the evidence inadmissible, and an appeals court agreed, finding that O'Brien's use of the spyware program--which she had installed on her husband's computer without his knowledge--violated Florida's wiretapping law.

"The Spector spyware program that the wife surreptitiously installed on the computer used by the husband intercepted and copied the electronic communications as they were transmitted," Judge Donald Grincewicz wrote for the court. "We believe that particular method constitutes interception within the meaning of the Florida act." Grincewicz distinguished spyware that makes such "contemporaneous" interceptions from programs that copy stored data. The latter are not covered by the statute, he said. (O'Brien v. O'Brien, 899 So. 2d 1133 (Fla. Dist. App. 2005).)

"Simply put, hacking into someone's e-mails violates state and federal laws," Friedlander said.

Growing acceptance

Kuder said courts may be growing more open to electronic evidence in divorce cases. "I believe a lot is evolving," he said. "Because in most jurisdictions, family law cases are tried without juries, judges tend to be more relaxed about the rules of evidence."

Friedlander noted that judges were more reluctant to accept electronic evidence five or six years ago than they are now. He said that as more judges spend time online, they are more likely to accept electronic evidence when it arises in family law cases that come before them.

Occasionally, however, Friedlander encounters more conservative or older judges who are reluctant to admit electronic evidence because they are less familiar with where the information came from and how it was produced. "I'm nervous it won't get in because with such personal issues, what is the foundation for the evidence?" he said.

Despite many judges' increasing willingness to admit electronic evidence, some parties in divorce cases choose not to bring it to court, said Tarin Hale, a Centerville, Ohio, divorce attorney. In some cases, spouses "don't want to call attention to themselves or their relationships by making a public disclosure," Hale said.

Additionally, some spouses may be concerned about potential criminal prosecution under state statutes or the federal Electronic Communications Privacy Act, which prohibits parties from revealing "to any other person the contents of any wire, oral, or electronic communication" that was not obtained legally.

Although a frightening prospect, such prosecutions are unlikely, Hale said. "Divorce cases that address whether this type of evidence can be used are seen as civil, not criminal, cases. So, for prosecutors, who don't want to get in the middle, they're not a top priority," he explained.

Internet invective

The rise of the Web has added another twist to divorce litigation: In cases that commonly produce intense hostilities between the parties, the Internet has created new, nearly instantaneous ways for warring spouses to spread embarrassing personal details or damning allegations about one another. Some courts are being asked to consider a spouse's online conduct in weighing divorce cases, and in a few instances, Internet postings have led to separate defamation claims.

In a recent case, Tricia Walsh-Smith, the wife of Broadway executive Philip Smith, shared information with the New York Post, resulting in an August 2007 column detailing her husband's allegedly unfair actions concerning the financing of a play she had written. After Smith filed for divorce on the grounds of cruel and inhuman treatment, Walsh-Smith posted a video on YouTube in which she revealed details about their intimate life.

In the video, Walsh-Smith called her husband's office, and while on speaker phone, asked his assistant "to interrupt him and ask him what he want [ed] her to do with his condoms, pornography, and Viagra that she claim [ed] to have found in the marital apartment," wrote New York Supreme Court Judge Harold Beeler in an order granting the divorce.

The video was "an overnight sensation"--viewed more than 3 million times on YouTube--and Walsh-Smith went on to post three more videos on the site in which she "continued her public rant against the plaintiff," Beeler noted.

In granting the divorce, Beeler wrote that Walsh-Smith's actions were "a calculated and callous campaign to embarrass and humiliate her husband" as a way to settle the divorce case on terms that were more desirable than those established in their prenuptial agreement. "She has attempted to turn the life of her husband into a soap opera by directing, writing, acting in, and producing a melodrama," he said.

Walsh-Smith's attorneys have said they plan to appeal the judge's decision, which upheld the conditions of the prenuptial agreement and ordered Walsh-Smith to leave the couple's shared apartment.

Another recent case tested where Internet postings about an ex-spouse cross the line between free speech and defamation.

Thomas Evans brought suit against his ex-wife, Linda Evans, and her mother for alleged online defamation and invasion of privacy. After the couple's 2002 divorce--which was followed by family court disputes over child custody, child support, and other issues--the two women published on the Internet details from his medical and financial records and statements accusing him of physically abusing Linda and her son. (Evans v. Evans, 76 Cal. Rptr. 3d 859 (App. 2008).)

Concerned that Linda might post additional information about him and the couple's divorce proceedings that could further damage his reputation and career, Thomas asked for a preliminary injunction, which the trial court granted. The appellate court reversed that decision, finding that the injunction was overly broad.

Explaining that the electronic format of the evidence was not an issue, Judge Judith Haller wrote, "The fact that the court's prohibition on publishing false materials applied only to speech on the Internet does not affect our analysis. The courts have made clear that speech on the Internet is accorded the same First Amendment protection as speech on other forums."

Matrimonial lawyers say electronic evidence will likely continue to factor into divorce cases as Americans' use of the Internet and personal computers shows no signs of slowing down. New Web-related tools may broaden the types of evidence that courts will be asked to consider. "Five years from now, I think evidence obtained from Web cams will really be something to watch," Friedlander said.

"With all of the information and possibilities available online, I don't think we've seen how far this [area of law] is going to go," Hale said.
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Author:Walters, Cecily
Publication:Trial
Date:Nov 1, 2008
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