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Electronic ‘Smoking Gun’ Evidence in Family Law Cases Has Potential to Backfire


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We all have those clients who spend their time looking for that uncomfortable email, text message, or recording that they are convinced will help bolster their own case by causing problems for the other side. In family law cases, it is often a message sent electronically or conversation recorded that provides some evidence of bad activity such as infidelity, hidden assets, use of drugs, gambling, or pornography.

The recent Dallas Court of Appeals decision in Miller v. Talley Dunn Gallery on March 3 should serve to remind us that our technologically savvy clients who unilaterally employ such investigative tactics could be harming, rather than helping, their cases. Their actions could subject them to civil liability and criminal punishment, and even affect the admissibility of the very smoking guns they are looking to find when they access their spouse’s cellphone.

In the Miller case, Mr. Miller and Ms. Dunn were married for 10 years. During the marriage, Mr. Miller frequently recorded his wife’s phone calls without her knowledge; placed a digital device in his wife’s car to record conversations; and accessed her cellphone while she was sleeping, taking screenshots of what he found. After the parties divorced, Mr. Miller started sending the information he surreptitiously obtained to third parties and self-publishing the information in an attempt to hurt and disparage his former wife both personally and professionally.

Ms. Dunn responded with a lawsuit asserting claims based, in part, on the Interception of Communications Act, the Harmful Access by Computer Act, and invasion of privacy, as well as seeking an injunction to force Mr. Miller to stop the dissemination of the personal information he took from her phone. The trial court granted the injunction, a decision the Dallas court of appeals upheld. In making its ruling, the appeals court stated that evidence supported Ms. Dunn’s probable right to recover on her claims that her former husband had invaded her privacy, and violated both ICA and HACA.

This ruling reaffirms our understanding of one point of law. It is well-established that any person, including a spouse, commits a crime if he or she knowingly or intentionally intercepts wire, oral or electronic communications to which he or she is not a party without the permission of one of the parties to the communication. Under the ICA, a spouse may also sue their husband or wife if they intercept, or attempt to intercept, or knowingly use information obtained from an interception.

As outlined in Miller, accessing a spouse’s cellphone may also result in additional criminal responsibility under HACA. A cellphone is now much more than simply a phone: it has been legally determined to be a computer, and a person cannot knowingly access a computer without the effective consent of the owner. When a client looks at his or her spouse’s phone and obtains information from that phone without consent, that client has, again, violated the Texas Penal Code.

The court determined that Mr. Miller accessed Ms. Dunn’s “computer” when he took screen shots of the log and text messages on her phone. Mr. Miller argued that the phone was not Ms. Dunn’s alone and, instead, was community property. The court, however, said that Ms. Dunn used the cellphone on a daily basis, she had the right to place a password on the cellphone and she had, at various times, restricted access to the cellphone by use of a password, which made her the sole owner of the cellphone.

Finally, although some may think that marriage insulates one from claims of invasion of privacy, courts have held, in cases such as Clayton v. Richards in 2001 that there is no differentiation for married or unmarried parties. An invasion of privacy exists when someone intentionally intrudes upon another’s seclusion when it would be highly offensive to a reasonable person. Eavesdropping with the aid of wiretaps or spying has been determined to be an invasion of privacy. Clients need to be made to understand that recording conversations and accessing a spouse’s phone without his or her permission will almost assuredly result in an actionable invasion of privacy claim by one spouse against another.

Simply put, the court’s ruling in Miller stands for the proposition that our clients will expose themselves to both civil and criminal responsibility if they record their spouses’ conversations or otherwise access data on their spouses’ phones and then divulge the information obtained. Lawyers and clients need to be aware because, no matter what the intentions are and no matter what their spouse did to prompt the investigation, it is the spouse that records, accesses or disseminates that stands to lose the most.

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