Family law can sometimes involve “good people, behaving badly.”

That’s according to Laura W. Morgan, of Family Law Consulting in Charlottesville, Va., who offers the tale of a hypothetical client named Mary, who thinks her husband, John, is cheating on her and using marital funds to pay for his trysts. Among other tactics, Mary purchased surveillance software, popularly known as “spyware,” and installed it on a shared computer, so she could read John’s password-protected e-mails and see the Web sites he visits. She additionally took the computer to a forensic computer specialist, who made a copy of the hard drive and then found scads of evidence that could be damaging to John in a divorce.

Mary is what Morgan calls a “self-help” spouse, because she has forgone formal electronic discovery — and it was easy and fairly inexpensive for her to do that. The problem is she may have broken a few laws in the process. (See article this page.)

Wisconsin Practitioners’ Perspectives

Carlton D. Stansbury, the program chair for the Family Law Section of the State Bar of Wisconsin, asked Morgan to speak at the most recent annual convention about “marital cybertorts,” because lately, he says he’s had more and more prospective clients like Mary, or clients who are married to someone like Mary.

Likewise, Ellen M. Frantz, of Johns, Flaherty & Collins S.C. in La Crosse, says these days, her clients often have that stack of printed e-mails, too, or other computer data. Many times, they are communications between the spouses and there’s no problem.

Sometimes, however, they are not, and while she has never had a client admit to using spyware to get the information, Frantz wouldn’t be surprised if someone had.

Rarely do the e-mails contain the “smoking gun” that’s central to the outcome of a case.

At best, some might suggest other means of obtaining relevant and admissible evidence, Frantz says. And, because most family law cases ultimately settle, those e-mails typically don’t even become part of an offer of proof or the record.

Stansbury, of Burbach & Stansbury S.C. in Milwaukee, says that sometimes one spouse spies on the other just to harass. When that happens, a call to opposing counsel asking for an immediate cease, or a motion will be filed, is in order, in addition to the client changing computer passwords and voicemail access, etc.

Other times, a spouse is spying on the other because he or she suspects a betrayal, says Charles I. Phillips, of Phillips & Gemignani in Waukesha. They need to know for sure, whether there’s an emotional or sexual affair, or neither, and what they learn probably isn’t relevant evidence, unless it somehow affects the children.

Still others, he continues, may be entering a minefield when they acquire evidence by questionable means such as spyware. He tells them that, and that probably most of it could be accessed by formal electronic discovery — mirroring the spouse’s hard drive and asking the court to order him or her to release all passwords. The biggest roadblock to going that route, of course, is cost.

E-discovery can be a dangerous strategy, says Katherine L. Charlton, of Hawks Quindel Ehlke & Perry S.C. in Milwaukee. “In many cases, it might be sending the wrong message — that this is going to be World War III. It might be fueling a fight that no one really wants, and unless there are serious issues of potential harm to the children or significant marital waste, I try to steer clients away from that, if possible,” she says.

“I also always tell clients that we cannot ask for anything we’re not prepared to produce as well. If we ask for a copy of the husband’s hard drive, he’s going to want hers.”

Wisconsin does not have any family law cases that are directly on point about the admissibility of illegally obtained e-mails, says Phillips.

Looking to other jurisdictions, however, in O’Brien v. O’Brien, Case No. 5D03-3484, 899 s.2d 1133 (Dist. Crt. App., Fla., Feb. 11, 2005), the court found a violation of Florida’s Security of Communications Act, modeled after the federal Wiretap Act. An intermediate Florida appellate court accordingly affirmed the trial court’s decision to bar the wife from introducing screen shots that her husband viewed into evidence in her divorce.

Contrast this with White v. White, 781 A.2d 85 (N.J. Super. Ct. Ch. Div. 2001), where a trial court held that a woman did not violate New Jersey’s Wiretap Act, which is identical to the federal Wiretap Act, when she retrieved e-mail messages her husband stored on the family computer and wanted to use them as evidence in a custody dispute.

Like many states, Wisconsin has its own version of the federal Wiretap Act, in sec. 968.31. Phillips doesn’t know if any prosecutions have happened involving divorcing spouses; there are no published cases on it with those facts, per the annotations to the statute.

Possibly that’s because one spouse isn’t anxious to contact the local prosecutor to discuss his wife’s potentially illegal use of spyware on his computer, when the indiscretions she discovered will likely become public record. But, it could happen, Frantz says, “Especially in the high-conflict cases, where every single thing is a huge issue. They’d never let it go.

And they’re the ones where, every time you, as their attorney, have to deal with them, your blood pressure goes up.”

Practical Suggestions

Attorneys can’t take a blind eye to the clients with that stack of e-mails, but rather, they need to inquire about how they obtained the information, from whose computer, and whether it was it password-protected.

Stansbury says, “I feel I have an extra duty to explain to those clients what they can and cannot do, and to give them the option to obtain the evidence legitimately,” he says, noting that sometime down the line, the failure to put the choice of electronic discovery on the table could give rise to an attorney malpractrice claim.

Although it doesn’t appear that formal electronic discovery has become a widespread practice in Wisconsin family law just yet (of the attorneys who spoke to Wisconsin Law Journal, only Phillips has used it in a family law case so far), attorneys should consider it in the right cases. Frantz has added “electronic storage” to her standard discovery forms, because so many people these days have gone paperless in their personal record keeping. Sometimes she’ll serve the formal request; other times, the records can be obtained by a call to opposing counsel.

In addition, Morgan emphasizes that attorneys who regularly communicate with their clients via e-mail must encrypt those messages, because their clients might be married to self-help spouses. For even more security, clients who can afford to buy a new laptop, to which a self-help spouse has no access, should do so.

If that’s not possible, and a client suspects that surveillance software has been installed in his or her computer, Donato Krumbein of Advanced Computer Investigative Services in Madison says that when that software uses predefined settings, a quality, up-to-date virus or spyware scanner will often detect it. If a savvy computer user has modified the settings, however, detection can be very difficult and it’s likely that only an expert could detect it.