Protect Your Devices… Privilege in a Divorce Setting

Published in Chicago Lawyer Magazine, April 2021
By Daniel Stefani

The 3rd District Appellate Court recently rendered an opinion of In re Marriage of Stinauer — a case where the parties divorced in late 2018 and the husband was ordered to pay his wife $125,000 in maintenance each year and nominal child support.

The award was based on the husband’s imputed income of $330,000 per year given that, in part, his gross annual income fluctuated historically. About a year later, the wife filed a petition to vacate the judgment and support order based on an allegation he misrepresented his 2017 income during the dissolution proceedings.

As the only support for her petition, the wife attached an email sent from the husband’s counsel to the husband discussing his anticipated gross income and his expectation to receive potential additional income over twice what he represented at trial. She came into possession of the email well after the entry of the judgment for dissolution after searching the contents of her husband’s cell phone which he gave to one of the minor children following entry of the judgment for dissolution.

The trial court granted the husband’s motion to strike the petition based on the allegation that the email was prohibited from disclosure because of attorney/client privilege. The appellate court — with Justice Tom M. Lytton delivering the opinion — reversed and remanded on the issue on that privilege. Lytton ultimately concluded case law relating privilege required a full evidentiary hearing and should not have been dismissed pursuant to the motion. It gave direction to the trial court as to the appropriate case law and options for testing whether a communication is protected by privilege.

In today’s electronic world, we all have greater exposure to inadvertent publication and/or the interception of attorney/client communications. Practitioners and clients alike should be on high alert in protecting emails and texts that contain attorney/client communications. In many scenarios, the litigants live under the same roof during the proceedings. Some practice nesting where the child stays in the marital home full-time and the parents go back and forth to either their own new residence or one shared residence. In all events, electronic devices — even hard paper copies of confidential communications — should be protected from disclosure to the spouse.

At the trial court level, the wife claimed that she filed a petition to vacate as soon as she discovered the email correspondence on the parties’ minor child’s cell phone. She asked the court, in part, to vacate and then allow discovery as to the husband’s actual 2017 income and thereafter. The husband’s motion to strike asserted that the email she obtained was protected by privilege and therefore could not support her petition. Her response to his motion, in part, was that privilege did not apply, and was waived by the husband and the crime-fraud exception to privilege applies. The trial court ruled without conducting an evidentiary hearing.

On appeal, the court gave certain direction to the trial court as to whose burden it is to prove the information is not privileged and which, if any, exception to the privilege applied. The court went on to identify certain exceptions to privilege and the tests that are to be applied to the facts.

Specifically, Lytton held that it was the wife’s burden to prove an exception applied. She alleged the crime-fraud exception, which is triggered when “a client seeks or obtains the services of an attorney in furtherance of criminal or fraudulent activity.” The court found that she had sufficiently alleged that the crimefraud exception to the attorney/client privilege applied to the email and that there should have been an evidentiary hearing during the trial.

The trial court was also directed on remand to consider whether the husband waived privilege by giving his cell phone containing the communication to the minor child. Lytton pointed out that state courts have decided questions of waiver using the express and/or implied waiver tests, the subjective analysis and the balancing test.

An express waiver arises when a client voluntarily testifies about privileged communications or fails to assert the privilege when the privileged information was requested. An implied waiver could arise when a client asserts claims or defenses that put their communications with the attorney at issue in litigation.

The subjective analysis considers whether a disclosure was inadvertent, and if so, the privilege cannot be waived. Under the balancing test, the court considers five factors and namely “(1) the reasonableness of the precautions taken to present the disclosure, (2) the time taken to rectify the error, (3) the scope of discovery, (4) the extent of the disclosure and (5) the overriding issue of fairness.”

On remand, trial court was directed to consider the tests and apply them to the evidence adduced at a full and complete hearing.

Dan Stefani is a principal at Katz & Stefani. The firm’s practice is limited to family law matters. His work on behalf of mainly high net-worth clients, as well as spouses of high net-worth individuals, involves valuations of closely held corporations, partnerships and other entities, detailed analysis of complex financial transactions, child custody and support issues as well as paternity and domestic violence.
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