Modern Evidence in Matrimonial Proceedings

Tiger Woods' recent matrimonial troubles seem to have been triggered not only by his own errant behavior, but, more proximately, by his wife's discovery of a trove of text messages on Woods' cell phone. Other high-profile figures whose phones, and their unedited use of them for amorous purposes, have provided key evidence include former Detroit Mayor Kwame Kilpatrick, who used his city-owned Blackberry to send messages to his aide cum paramour; Nevada Senator John Ensign, whose mistress's cell phone number was listed on the Senator's phone under “Aunt Judy”; and Nevada Governor Jim Gibbons, who allegedly sent more than 800 text messages to his lover on his state phone. Gibbons later repaid the state $130 for the texting charges.

Can These Forms of Evidence Be Discovered?

The most newsworthy category of e-material in matrimonial actions probably involves one spouse's communications with someone other than his or her spouse. In a fault-based divorce system like New York's, proof of adultery can go a long way in helping the wronged party's case, even if equitable distribution kicks in once it's been decided that there are grounds for divorce. And, while evidence of adultery used to consist of lipstick smudges on the collar, credit-card receipts from “no-tell motels“ and blurry photos supplied by private detectives, now it's far more likely to be in the form of text messages, e-mails, IMs or postings on online Web sites.

Like computer files and e-mails, the more ephemeral electronic communications such as text messages, IMs (instant messages sent on a computer or smart phone), EZ-Pass toll records, and even postings on Facebook or MySpace are discoverable in matrimonial actions. Under the general principles of New York CPLR ' 3101, there is no legal difference between hard-copy records and electronic evidence. There is, however, a world of practical difference in the ease with which the damning electronic material can be retrieved, and in the safeguards that must be applied in the process of discovery.

A more practical problem may be that the damning material has a very short shelf life, unless one party to the messaging takes steps to preserve it. For text messages sent via cell phone, the various mobile providers routinely preserve the messages on their corporate servers for only three to 10 days, depending on the provider. So, even a subsequent court order to produce such records may fail, because production has become impossible. But, when at least one of the parties involved has preserved the records on their own devices, then the normal rules regarding discovery of electronic information in matrimonial actions would apply.

New York Case Law

In New York, not all electronic communication is discoverable at the fault stage of divorce proceedings. The party seeking discovery needs to identify the requested E-material with some specificity and to show that the material is relevant to the proceedings. New York courts generally frown on extensive discovery at this stage, though more far-reaching discovery is permitted with respect to a divorcing couple's finances. Those inquiries are the ones that have generated litigation to date in New York, as described below.

Byrne v. Byrne

The earliest New York case involving a spouse's discovery of information stored on the other spouse's computer was in 1996, when Justice Rigler of Kings County Supreme Court wrote that “computer memory is akin to a file cabinet.” Byrne v. Byrne, 168 Misc.2d 321, 323 (1996). Since the Byrne decision, there have been several cases decided in the same vein that have allowed discovery of information on a computer's hard drive. Generally, courts are willing to allow spouses to dig into one another's hard drives when the discovery request is “relevant and material,” even when discovery is supposed to be limited to financial issues.

The Byrne decision has two elements: first, a computer's memory is analogous to a file cabinet and thus discoverable; and, second, a “family computer” is essentially an unlocked file cabinet that is open for discovery by anyone in the family. In Byrne, the wife had taken her husband's laptop, owned by the husband's employer, Citibank, to her attorney's office and subsequently sought court intervention to access the computer's hard drive to find out information about her husband's finances and personal business records. The court determined that the laptop was a “family computer,” since it was used not only by the husband, but also by the children for their homework. Given that determination, records in the computer were discoverable as if they had been stored in a file cabinet left in the marital residence. Byrne at 323. The court then directed that: 1) the parties appear in court with their computer experts to download the memory files in the computer; 2) the results of the download be deposited with the court; 3) a list of the downloaded documents be generated and given to counsel; 4) defendant's counsel would be able to file a motion for a protective order within 10 days of the completion of the downloading process; and 5) once the downloading process was completed, the computer would be returned to Citibank.

Etzion v. Etzion

The next set of relevant cases in New York occurred over a decade after Byrne, when text messaging, instant messaging and e-mail had joined the list of potentially discoverable electronic information. In January 2008, in Etzion v. Etzion, 19 Misc.3d 1102(A) (Sup. Ct. Nassau Cty. 2008), Justice Marber held that a wife was not entitled to copy the hard drives from her husband's personal and business computers to find evidence, including e-mail exchanges between the husband and real estate brokers, relating to the circumstances surrounding real estate negotiations and sales. The court held, that “the plaintiff, her counsel, and/or her financial advisors could have easily availed themselves of any number of [alternative] valuation and discovery procedures” which were used prior to the plaintiff's application to copy the computers' hard drives. Apparently, part of the reason for denying access was an earlier decision in the same case, in 2005, that had permitted some computer discovery, thus making the wife's later request redundant and dilatory.

R.C. v. B.W.

A month later, in February 2008, Justice Adams in Kings County Supreme Court denied a husband's application to discover information stored on his wife's computers in order to determine whether her application for counsel fees and maintenance was baseless. R.C. v. B.W., 4/3/2008 N.Y.L.J. (col. 1). The husband sought to sort through his wife's computers to find out how much legal work she had done on her own, as part of his argument that her legal bills were inflated and that she was capable of contributing to her own support. The court ruled against the husband because, the court said, the material sought had not been demonstrated to be relevant to his arguments.

Cases Involving Computer Forensic Experts

The next set of cases, both decided just a few months after R.C. v. B.W., involved situations in which the wives privately hired computer forensic experts to analyze their husband's online extracurricular activities. In each case, by the time the issue appeared before the court, discovery was already complete. In Moore v. Moore, (8/8/2008 N.Y.L.J., (col. 3)), Justice Evans of New York County Supreme Court denied the husband's motion to suppress computer records, including instant-messaging “chat” records between himself and his paramour. The court noted in its decision that the computer forensic expert did not find that any of the files were encrypted or required passwords when copying the husband's hard drive. Thus, if a spouse seeks to protect his computer secrets, he must, it seems, at a minimum make sure that he's the only person who uses the computer and that any files he wants to be safe from discovery have at least modest levels of security.

Similarly, in Boudakian v. Boudakian, 12/26/2008 N.Y.L.J. 27, (col. 3), Justice Lebowitz of Kings County Supreme Court denied the husband's motion to suppress the information obtained by the wife from the computer hard drive. This information included hundreds of personal and intimate text messages and e-mail exchanges between the husband and others. The court determined that the computer was a “family computer” and that the “extensive pornography, pornographic video made by the defendant in the home, and evidence of extramarital affairs” were already discovered and thus could be used not only for proof of the grounds for the divorce, but also for other purposes, including a custody dispute. However, the court left until a later date the determination of whether the lurid discovered information was relevant to any particular issues before the court.

Finally, in Gurevich v. Gurevich, 24 Misc. 3d 898 (Sup. Ct. Kings Cty. 2009), Justice Sunshine denied the husband's request to suppress emails obtained from the husband's computer, despite the husband's assertion that the e-mails had been obtained in violation of the New York wiretapping statute, Penal Law ' 250.05. Justice Sunshine determined that the wiretapping statute covered only messages that were “intercepted” en route ' a millisecond in the computer age ' and not those same messages once they're stored on a computer.

Sister States Offer Additional Guidance

While no New York cases address this matter, two decisions, from New Jersey and Florida, illustrate the hair-splitting nature of distinctions that the courts are being forced to make when faced with technology that has already outstripped the definitions of the statutes. In White v. White, 781 A.2d 85 (N.J. Super Ct. Ch. Div. 2001), the court permitted introduction of an electronic copy of a letter the husband had written to his girlfriend. In White, the incriminating copy had been “retrieved from post-transmission storage” by a computer forensic expert hired by the wife. Although the wife had never used the family computer, she “had authority to do so.”

In contrast, in the Florida case of O'Brien v. O'Brien, 899 So. 2d 1133, the court barred evidence obtained by a wife's secret installation of spy software on the home computer, which created records of e-mails sent and received by the husband and his paramour, as well as snapshots of adult Web sites the husband had visited online. By analogy to federal case law under the Electronic Communications Privacy Act, the Florida court determined that the use of spy software amounted to interception, and hence any intercepted information was inadmissible. The apparent distinction between “interception,” as found in Gurevich and O'Brien, and “retrieval,” as in Boudakian, makes no sense in the Internet age, when messages are both stored and in transit at the same time. Penalizing the aggrieved wife for self-help (as in the case of the wife who installed spyware) while permitting another aggrieved wife to hire expensive forensic services to obtain the very same information that could have been obtained through the spy software is an unnecessary exaltation of form over substance. It is likely that these distinctions will disappear as electronic discovery cases make their way through the legal system.

Conclusion

All the reported cases thus far have involved actual computers, rather than “smart phones,” “personal data assistants” or other digital devices. The courts' solicitude for a party's expectation of privacy may be greater with respect to telephone-like devices, especially if they are never shared with other family members and if their use is password-protected. In Tiger Woods' and John Ensign's cases, the offending messages and address book entries were actually discovered by the aggrieved spouses, and, hence, not the subject of litigation as to whether they were discoverable. But we are confident that enterprising divorce lawyers are already including not just computer records, but BlackBerry, iPhone and other data in their routine discovery requests, and that, in the not too distant future, that question will be litigated as well.

Meanwhile, the best advice to clients seeking to safeguard their electronic information from discovery is probably to take all possible steps to establish an expectation of privacy, including by not sharing electronic devices, and password-protecting programs and data. And don't forget to tell them to keep the privacy levels on online sites like Facebook or LinkedIn at their highest levels.

Stephen A. Zorn is Special Counsel to and Sophie Jacobi is an Associate at Mayerson Stutman Abramowitz, LLP, an eight-lawyer firm that limits its practice to matrimonial, divorce, family law and related issues. The firm maintains offices in Manhattan and White Plains.

Tiger Woods' recent matrimonial troubles seem to have been triggered not only by his own errant behavior, but, more proximately, by his wife's discovery of a trove of text messages on Woods' cell phone. Other high-profile figures whose phones, and their unedited use of them for amorous purposes, have provided key evidence include former Detroit Mayor Kwame Kilpatrick, who used his city-owned Blackberry to send messages to his aide cum paramour; Nevada Senator John Ensign, whose mistress's cell phone number was listed on the Senator's phone under “Aunt Judy”; and Nevada Governor Jim Gibbons, who allegedly sent more than 800 text messages to his lover on his state phone. Gibbons later repaid the state $130 for the texting charges.

Can These Forms of Evidence Be Discovered?

The most newsworthy category of e-material in matrimonial actions probably involves one spouse's communications with someone other than his or her spouse. In a fault-based divorce system like New York's, proof of adultery can go a long way in helping the wronged party's case, even if equitable distribution kicks in once it's been decided that there are grounds for divorce. And, while evidence of adultery used to consist of lipstick smudges on the collar, credit-card receipts from “no-tell motels“ and blurry photos supplied by private detectives, now it's far more likely to be in the form of text messages, e-mails, IMs or postings on online Web sites.

Like computer files and e-mails, the more ephemeral electronic communications such as text messages, IMs (instant messages sent on a computer or smart phone), EZ-Pass toll records, and even postings on Facebook or MySpace are discoverable in matrimonial actions. Under the general principles of New York CPLR ' 3101, there is no legal difference between hard-copy records and electronic evidence. There is, however, a world of practical difference in the ease with which the damning electronic material can be retrieved, and in the safeguards that must be applied in the process of discovery.

A more practical problem may be that the damning material has a very short shelf life, unless one party to the messaging takes steps to preserve it. For text messages sent via cell phone, the various mobile providers routinely preserve the messages on their corporate servers for only three to 10 days, depending on the provider. So, even a subsequent court order to produce such records may fail, because production has become impossible. But, when at least one of the parties involved has preserved the records on their own devices, then the normal rules regarding discovery of electronic information in matrimonial actions would apply.

New York Case Law

In New York, not all electronic communication is discoverable at the fault stage of divorce proceedings. The party seeking discovery needs to identify the requested E-material with some specificity and to show that the material is relevant to the proceedings. New York courts generally frown on extensive discovery at this stage, though more far-reaching discovery is permitted with respect to a divorcing couple's finances. Those inquiries are the ones that have generated litigation to date in New York, as described below.

Byrne v. Byrne

The earliest New York case involving a spouse's discovery of information stored on the other spouse's computer was in 1996, when Justice Rigler of Kings County Supreme Court wrote that “computer memory is akin to a file cabinet.” Byrne v. Byrne , 168 Misc.2d 321, 323 (1996). Since the Byrne decision, there have been several cases decided in the same vein that have allowed discovery of information on a computer's hard drive. Generally, courts are willing to allow spouses to dig into one another's hard drives when the discovery request is “relevant and material,” even when discovery is supposed to be limited to financial issues.

The Byrne decision has two elements: first, a computer's memory is analogous to a file cabinet and thus discoverable; and, second, a “family computer” is essentially an unlocked file cabinet that is open for discovery by anyone in the family. In Byrne, the wife had taken her husband's laptop, owned by the husband's employer, Citibank, to her attorney's office and subsequently sought court intervention to access the computer's hard drive to find out information about her husband's finances and personal business records. The court determined that the laptop was a “family computer,” since it was used not only by the husband, but also by the children for their homework. Given that determination, records in the computer were discoverable as if they had been stored in a file cabinet left in the marital residence. Byrne at 323. The court then directed that: 1) the parties appear in court with their computer experts to download the memory files in the computer; 2) the results of the download be deposited with the court; 3) a list of the downloaded documents be generated and given to counsel; 4) defendant's counsel would be able to file a motion for a protective order within 10 days of the completion of the downloading process; and 5) once the downloading process was completed, the computer would be returned to Citibank.

Etzion v. Etzion

The next set of relevant cases in New York occurred over a decade after Byrne, when text messaging, instant messaging and e-mail had joined the list of potentially discoverable electronic information. In January 2008, in Etzion v. Etzion , 19 Misc.3d 1102(A) (Sup. Ct. Nassau Cty. 2008), Justice Marber held that a wife was not entitled to copy the hard drives from her husband's personal and business computers to find evidence, including e-mail exchanges between the husband and real estate brokers, relating to the circumstances surrounding real estate negotiations and sales. The court held, that “the plaintiff, her counsel, and/or her financial advisors could have easily availed themselves of any number of [alternative] valuation and discovery procedures” which were used prior to the plaintiff's application to copy the computers' hard drives. Apparently, part of the reason for denying access was an earlier decision in the same case, in 2005, that had permitted some computer discovery, thus making the wife's later request redundant and dilatory.

R.C. v. B.W.

A month later, in February 2008, Justice Adams in Kings County Supreme Court denied a husband's application to discover information stored on his wife's computers in order to determine whether her application for counsel fees and maintenance was baseless. R.C. v. B.W., 4/3/2008 N.Y.L.J. (col. 1). The husband sought to sort through his wife's computers to find out how much legal work she had done on her own, as part of his argument that her legal bills were inflated and that she was capable of contributing to her own support. The court ruled against the husband because, the court said, the material sought had not been demonstrated to be relevant to his arguments.

Cases Involving Computer Forensic Experts

The next set of cases, both decided just a few months after R.C. v. B.W., involved situations in which the wives privately hired computer forensic experts to analyze their husband's online extracurricular activities. In each case, by the time the issue appeared before the court, discovery was already complete. In Moore v. Moore, (8/8/2008 N.Y.L.J., (col. 3)), Justice Evans of New York County Supreme Court denied the husband's motion to suppress computer records, including instant-messaging “chat” records between himself and his paramour. The court noted in its decision that the computer forensic expert did not find that any of the files were encrypted or required passwords when copying the husband's hard drive. Thus, if a spouse seeks to protect his computer secrets, he must, it seems, at a minimum make sure that he's the only person who uses the computer and that any files he wants to be safe from discovery have at least modest levels of security.

Similarly, in Boudakian v. Boudakian , 12/26/2008 N.Y.L.J. 27, (col. 3), Justice Lebowitz of Kings County Supreme Court denied the husband's motion to suppress the information obtained by the wife from the computer hard drive. This information included hundreds of personal and intimate text messages and e-mail exchanges between the husband and others. The court determined that the computer was a “family computer” and that the “extensive pornography, pornographic video made by the defendant in the home, and evidence of extramarital affairs” were already discovered and thus could be used not only for proof of the grounds for the divorce, but also for other purposes, including a custody dispute. However, the court left until a later date the determination of whether the lurid discovered information was relevant to any particular issues before the court.

Finally, in Gurevich v. Gurevich , 24 Misc. 3d 898 (Sup. Ct. Kings Cty. 2009), Justice Sunshine denied the husband's request to suppress emails obtained from the husband's computer, despite the husband's assertion that the e-mails had been obtained in violation of the New York wiretapping statute, Penal Law ' 250.05. Justice Sunshine determined that the wiretapping statute covered only messages that were “intercepted” en route ' a millisecond in the computer age ' and not those same messages once they're stored on a computer.

Sister States Offer Additional Guidance

While no New York cases address this matter, two decisions, from New Jersey and Florida, illustrate the hair-splitting nature of distinctions that the courts are being forced to make when faced with technology that has already outstripped the definitions of the statutes. In White v. White , 781 A.2d 85 (N.J. Super Ct. Ch. Div. 2001), the court permitted introduction of an electronic copy of a letter the husband had written to his girlfriend. In White, the incriminating copy had been “retrieved from post-transmission storage” by a computer forensic expert hired by the wife. Although the wife had never used the family computer, she “had authority to do so.”

In contrast, in the Florida case of O'Brien v. O'Brien , 899 So. 2d 1133, the court barred evidence obtained by a wife's secret installation of spy software on the home computer, which created records of e-mails sent and received by the husband and his paramour, as well as snapshots of adult Web sites the husband had visited online. By analogy to federal case law under the Electronic Communications Privacy Act, the Florida court determined that the use of spy software amounted to interception, and hence any intercepted information was inadmissible. The apparent distinction between “interception,” as found in Gurevich and O'Brien, and “retrieval,” as in Boudakian, makes no sense in the Internet age, when messages are both stored and in transit at the same time. Penalizing the aggrieved wife for self-help (as in the case of the wife who installed spyware) while permitting another aggrieved wife to hire expensive forensic services to obtain the very same information that could have been obtained through the spy software is an unnecessary exaltation of form over substance. It is likely that these distinctions will disappear as electronic discovery cases make their way through the legal system.

Conclusion

All the reported cases thus far have involved actual computers, rather than “smart phones,” “personal data assistants” or other digital devices. The courts' solicitude for a party's expectation of privacy may be greater with respect to telephone-like devices, especially if they are never shared with other family members and if their use is password-protected. In Tiger Woods' and John Ensign's cases, the offending messages and address book entries were actually discovered by the aggrieved spouses, and, hence, not the subject of litigation as to whether they were discoverable. But we are confident that enterprising divorce lawyers are already including not just computer records, but BlackBerry, iPhone and other data in their routine discovery requests, and that, in the not too distant future, that question will be litigated as well.

Meanwhile, the best advice to clients seeking to safeguard their electronic information from discovery is probably to take all possible steps to establish an expectation of privacy, including by not sharing electronic devices, and password-protecting programs and data. And don't forget to tell them to keep the privacy levels on online sites like Facebook or LinkedIn at their highest levels.

Stephen A. Zorn is Special Counsel to and Sophie Jacobi is an Associate at Mayerson Stutman Abramowitz, LLP, an eight-lawyer firm that limits its practice to matrimonial, divorce, family law and related issues. The firm maintains offices in Manhattan and White Plains.