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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 Mary White may refer to any of the following:
  • Mary White (Fianna Fáil politician), an Irish politician with the Fianna Fáil party.
  • Mary White (Green Party politician), an Irish politician with the Green Party.
 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.


William filed a motion to suppress motion to suppress n. a motion (usually on behalf of a criminal defendant) to disallow certain evidence in an up-coming trial. Example: a confession which the defendant alleges was signed while he was drunk or without the reading of his Miranda rights.  the evidence, claiming that his wife had invaded his privacy and violated New Jersey's wiretap wiretap n. using an electronic device to listen in on telephone lines, which is illegal unless allowed by court order based upon a showing by law enforcement of "probable cause" to believe the communications are part of criminal activities.  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 The American Academy in Berlin is a non-partisan academic institution in Berlin. It was founded in September 1994 by a group of prominent Americans and Germans, among them Richard Holbrooke, Henry Kissinger, Richard von Weizsäcker, Fritz Stern and Otto Graf Lambsdorff and opened in  of Matrimonial mat·ri·mo·ny  
n. pl. mat·ri·mo·nies
The act or state of being married; marriage.

[Middle English, from Old French matrimoine, from Latin m
 Lawyers (AAML AAML American Academy of Matrimonial Lawyers (US)
AAML Ash And Misty Love
AAML Associação Albergue Martim Lutero
AAML Arkansas Abandoned Mine Land
AAML Animal Artistry Mailing List
AAML Advance Asset Management Limited
) 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 Exchanging text messages in real time between two or more people logged into a particular instant messaging (IM) service. Instant messaging is more interactive than e-mail because messages are sent immediately, whereas e-mail messages can be queued up in a mail server for seconds or  and Internet browsing history are both close behind in second place, according to according to
1. As stated or indicated by; on the authority of: according to historians.

2. In keeping with: according to instructions.

 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 That which, according to established legal principles, cannot be received into evidence at a trial for consideration by the jury or judge in reaching a determination of the action. , 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 Waverly is the name of some places in the U.S. state of New York:
  • Waverly, Franklin County, New York
  • Waverly, Tioga County, New York
  • The former hamlet of Waverly in what is now Otto, New York
For other places and usages, see Waverly.
, attorney, said what constitutes a privacy violation can be less than clear if spouses are using the same e-mail account e-mail account ncuenta de correo  or Internet domain.

Kuder concurred: "A major area of dispute has involved the fact that the 'owner' of an [Internet service provider Internet service provider (ISP)

Company that provides Internet connections and services to individuals and organizations. For a monthly fee, ISPs provide computer users with a connection to their site (see data transmission), as well as a log-in name and password.
] 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 A form of eavesdropping involving physical connection to the communications channels to breach the confidentiality of communications. For example, many poorly-secured buildings have unprotected telephone wiring closets where intruders may connect unauthorized wires to listen in on phone  law.

"The Spector spyware program that the wife surreptitiously sur·rep·ti·tious  
1. Obtained, done, or made by clandestine or stealthy means.

2. Acting with or marked by stealth. See Synonyms at secret.
 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 not covered Health care adjective Referring to a procedure, test or other health service to which a policy holder or insurance beneficiary is not entitled under the terms of the policy or payment system–eg, Medicare. Cf 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
ECPA redirects here. For the Christian publishers association, see Evangelical Christian Publishers Association
The Electronic Communications Privacy Act of 1986 (ECPA Pub. L. 99-508, Oct. 21, 1986, 100 Stat.
, 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 An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute.

When a person begins a civil lawsuit, the person enters into a process called 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 The New York Post is the 13th-oldest newspaper published in the United States and the oldest to have been published continually as a daily.[3] Since 1976, it has been owned by Australian-born billionaire Rupert Murdoch's News Corporation and is one of the 10 , 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 Another name for cruelty, or for the intentional, hostile infliction of physical or mental suffering upon another individual, which is a ground for Divorce in many states. , 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 For the highest appellate court in New York, see .
The Supreme Court of the State of New York is New York State's highest trial court, and is of general jurisdiction. There is a supreme court in each of New York State's 62 counties, although some of the smaller counties share
 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 prenuptial agreement (antenuptial agreement) n. a written contract between two people who are about to marry, setting out the terms of possession of assets, treatment of future earnings, control of the property of each, and potential division if the marriage is later . "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 invasion of privacy n. the intrusion into the personal life of another, without just cause, which can give the person whose privacy has been invaded a right to bring a lawsuit for damages against the person or entity that intruded. . After the couple's 2002 divorce--which was followed by family court disputes over child custody The care, control, and maintenance of a child, which a court may award to one of the parents following a Divorce or separation proceeding.

Under most circumstances, state laws provide that biological parents make all decisions that are involved in rearing their
, 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 A temporary order made by a court at the request of one party that prevents the other party from pursuing a particular course of conduct until the conclusion of a trial on the merits.

A preliminary injunction is regarded as extraordinary relief.
, which the trial court granted. The appellate court A court having jurisdiction to review decisions of a trial-level or other lower court.

An unsuccessful party in a lawsuit must file an appeal with an appellate court in order to have the decision reviewed.
 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
Date:Nov 1, 2008
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