Melissa Brown, an attorney in Charleston, South Carolina, is a fellow of the American Academy of Matrimonial Lawyers and one of the preeminent family lawyers in South Carolina. I had the occasion, last week, to read her excellent article on her blog entitled "Be Careful When Using Technology to Gather Evidence." Melissa has graciously allowed us to re-post her post. Her article is as follows:
The world of technology changes at break neck speed. Just in the past year, Apple released its third generationiPad and seven months later it is introducing the fourth generation iPad, new iPad Mini and the iPhone 5. Even Apple fans hardly have time to familiarize themselves with a new toy before another is introduced. The new technology is available even before contracts run on the previous models.
Most people today are not as concerned about keeping up with the Jones’s as they are with keeping up with the Steve Jobs’s. The problem in the legal field is that while lawyers struggle to keep up with latest and greatest technological advances, the laws addressing the use, misuse and abuse of such technology are also ever-evolving. However, the laws are not evolving at nearly the pace of technology growth. The result is that obtaining evidence through the use of technology can become dangerous both to clients and attorneys.
No one can be completely sure how old laws will apply to new technology particularly technology that few could fathom or contemplate when the laws were enacted. Lawyers and judges struggle to apply general principals of law to situations never imagined. While there are some hard and fast rules, much of this area of law remains murky and uncertain. Clients may believe their "smoking gun" e-mail will win their case, but, if a court later decides that the client obtained the e-mail illegally, the court will exclude that evidence entirely. Even worse, the client and the attorney offering the illegally obtained evidence might face civil and criminal liability for even attempting to admit such material.
In a much-publicized Ohio case, an ex-wife, Catherine Zang is currently suing her ex-husband, Joseph Zang, and his attorney, Mary Jill Donovan, for wiretapping and invasion of privacy. Catherine Zang claims her ex-husband installed monitoring devices in their home and spied on her with a hidden video camera and microphone. She alleges that he installed these secret cameras to gain leverage during their divorce proceedings. Under the federal wiretapping laws, a person may not intercept wire, oral, or electronic communications, and, under many state’s laws,unless one of the parties in the conversation is aware of the recording, the recording is illegal. This means that in so called "one party" states like South Carolina, a husband is allowed to tape his wife’s conversation only if he is also a party to the ‘conversation. Joseph Zang under Ohio law was probably not allowed to record his wife;s conversations that were not with him, as he allegedly did. He and his lawyer are facing civil penalties up to $10,000 per taping, plus punitive damages and attorney fees. They could also be charged criminally and be fined up $250,000 and serve up to five years in jail.
The reality is that using technology to gather evidence for potential use in during litigation is likely dangerous for both clients and their attorneys. Most technologically savvy attorneys implement electronic evidence policies that require their clients to disclose how they obtained electronic evidence before ever discussing the substance of the evidence. Such policies are designed to protect both the client and the attorney from exposure to criminal and civil liabilities.
Family law attorneys increasingly field questions such as, "I bought that computer she’s using, why don’t I have the right to read her e-mails"or "I paid for that iPhone, why can’t I use the tracking feature to find out where she’s going after work?" "It’s our car, is it ok to put a GPS tracker on it?"
Today’s family law attorney must stay abreast of how to answer these and many other questions because spying on one’s spouse has become an unfortunate, yet common occurrence in our society especially given the readily accessible spy technology.
If you suspect your spouse, business partner or employee of wrongdoing of any sort, before you conduct your own electronic surveillance, consult with an experienced, technologically savvy attorney. Too often clients and employers make the mistake of thinking that because they are married to someone or employ someone who uses their equipment that person no longer has privacy rights. Ask for advice before you snoop to best protect yourself and to ensure that any evidence you gather can be used later in court if necessary. (Article inspired by Technology Policy written by Mark Chinn, Esquire, Jackson, MS)
We have posted on evidence from Facebook and whether the use of GPS devices was an invasion of privacy or an act of domestic violence on this blog before. The bottom line is that the laws are different in each state and you must be careful before you use electronic means to collect evidence, or you might find that you are the one that gets in trouble.
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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild’s Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.