In the recent unpublished decision of L.G. v. T.G.. the Appellate Division addresses an issue that we are dealing with more and more – tracking one’s spouse through a hidden GPS on their car. GPS in terms of domestic violence isn’t necessarily “new” – you can read about the beginnings in Eric Solotoff’s 2011
Technology is making it easier and easier to satisfy our curiosity about just what the heck the people in our lives are up to. Are you curious about your husband’s whereabouts? You could plant a GPS device on his car. Do you want to know what your wife is saying to the kids? There are…
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.
About a month ago, I blogged on a case that held that putting a GPS in a spouse’s car was not an invasion of privacy because cars travel on public roads and there is no expectation of privacy. That said, invasion of privacy is a tort so this case really did not address the domestic violence/stalking implications of the conduct. In fact, at the end of the post, I said:
Now, should people going through a divorce take this as a green light to start placing GPS devices in their spouse’s vehicle. Perhaps not. There have been some that have argued and some judges have found that that conduct would amount to domestic violence – perhaps harassment or stalking. Of course, that begs the question of how the alleged victim could demonstrate the requisite fear or be alarmed, if the did not know of the placement of the GPS and similarly, how it would be stalking if the person did not know that the GPS was recording their movements. I have no doubt that there will be more to come on this.
Little did I know that more was going to come so soon. That is, until I read L.J.V.H. v. R.J.V.H., an unreported Appellate Division opinion decided yesterday. In that case, the court found that the putting a GPS device in an ex-wife’s new boyfriend’s car was stalking and thus domestic violence.
Apparently, this was not the defendant’s first foray into the use of a GPS. At the commencement of the original divorce a year prior, the defendant had put a GPS on the wife’s car. She obtained a TRO which was ultimately resolved by a consent order in the divorce case for restraints, including restraints on stalking.
As technology progresses, the use of it rears its head during divorce cases. One such form of technology is the use of a GPS in a spouses vehicle. In a reported (precedential) opinion decided on July 7, 2011, in the case of Villanova vs. Innovative Investigations, the Appellate Division affirmed a trial court’s granting of summary judgment, effectively dismissing a husband’s invasion of privacy claim.
In this case, the wife , in the midst of divorce proceedings, hired a private investigator to follow her husband. The private investigator later suggested that the wife put a GPS device in the family vehicle driven by the husband and she did. She later used the findings in the divorce case. During the divorce case, the husband amended his divorce pleading to seek invasion of privacy damages against the wife. He also tried to add the defendant’s in this case, the private investigator as a defendant in the divorce case but the court would not allow that. The husband ultimately abandoned his tort claim against the wife in their settlement but reserved his rights to pursue his claim against the private investigator.
The invasion of privacy claim in the case against the private investigator was ultimately dismissed because the court found that there is no expectation of privacy driving over public roads.