Published: September 24, 2007 08:53 am            

Searching for dirt: Electronic discovery in divorces

View from the Bench

Snooping by disgruntled spouses in anticipation of an impending divorce is nothing new. Spouses have always employed surveillance as a means of determining just what the other has been up to – philandering, concealing assets or maybe substance abuse or gambling.

In fact, prior to the advent of “no-fault” divorces, private detectives were routinely employed to dig up the dirt. However, modern technology is rapidly changing the nature of that search.

The New York Times recently reported that the prevalence of electronic snooping is increasing.

According to the Times, “the age-old business of breaking up has taken a decidedly Orwellian turn, with digital evidence like e-mail messages, traces of Web site visits and mobile telephone records now permeating many contentious divorce cases.”

In fact, the search for digital evidence is now commonplace in most litigation. But in divorce cases, the evidence that is often uncovered tends to be of the most private and salacious nature.

In one instance reported by the Times, a technology consultant who suspected his spouse of having an affair installed a surveillance program on her computer. That program allowed him to review the sites she visited, her instant messages, and her e-mails. The results provided indisputable evidence that she was dating another man, posting explicit photos on the Internet, and soliciting sex with other couples. All of this information is potentially damning evidence in a battle over custody, visitation or maintenance.

While most people might hesitate at the thought of invading another’s privacy by looking at that person’s mail or retracing their computer search trail, the hurt and humiliated are understandably less constrained by privacy concerns when it comes to their own spouse. All too frequently this digital “evidence” initially confirms what an intuitive spouse has long suspected; and you can bet it will be the first thing provided to an attorney when seeking legal advice.

Nowadays, most homes have computers and most of us utilize one or more personal devices capable of storing digital data including cellular phones, PDAs or BlackBerries. Despite the best efforts to hide incriminating data, qualified experts, retained by savvy lawyers, can fairly easily recover data once thought to be lost or erased. As such, attorneys are increasingly seeking court orders to preserve digital or wire data. The sanctions for violations of these orders can be severe. The evidence obtained during this process is known as “discovery” and can form the basis for a claim or defense in divorce litigation.

Despite its apparent usefulness, electronic snooping carries its own risks. Sometimes ignorance is bliss. A husband or wife may be better off not knowing the full extent of their spouse’s perfidy. On other occasions, electronic snooping crosses the line into illegal eavesdropping or may result in civil liability.

As attorneys Louise Graham and James Keller noted in a prominent Kentucky treatise, “self-help” discovery – where a client gains access to information about his or her spouse by surreptitiously obtaining copies of documents or conversations – can be problematic.

First, the snooping may be a crime. Don’t believe for a minute that federal and state laws, which prohibit eavesdropping, don’t apply just because the person you’re spying on is your spouse. They do. For example, Kentucky state law prohibits tampering with private communications, such as opening another person’s mail.

Second, the evidence could be inadmissible or even result in civil liability. The court may exclude data improperly obtained under federal or state law from use in any proceeding no matter how incriminating and powerful. Moreover, some federal statutes allow recovery of monetary damages from a person who wrongfully eavesdrops or uses illegally obtained evidence. In these circumstances, the value of discovering the incriminating evidence, which is intended to be used in a divorce proceeding, may be far outweighed by the potential criminal and civil liability.

All too often, the behaviors that prompt a divorce are unpleasant. Sometimes people take great efforts to conceal that behavior. As we become more dependent on technology, it may become increasingly difficult to keep that behavior from being discovered and subsequently exploited in a courtroom.

        

• Click to discuss this story with other readers on our forums.