Can I use my spouse’s emails in divorce litigation?
Published in Chicago Lawyer Magazine, March 2017
by Daniel R. Stefani
We hear it all the time in clients’ initial consultations. Can I look at my spouse’s emails on our home computer? The first question I have is how would you acquire such emails? We then discuss whether that acquisition and/or use of emails could violate some State or Federal law regarding eavesdropping, wiretapping, etc. The law is still somewhat unclear in Illinois. However, the Seventh U.S. Circuit Court of Appeals decided a case on the subject on December 14, 2016. In Case No. 15-2076, Barry Epstein, Plaintiff-Appellant, v. Paula Epstein and Jay Frank, Defendants-Appellees. The Seventh Circuit held that putting an auto-forward on your spouse’s email account when you suspect he is cheating on you could violate the Federal Wiretapping and Electronic Surveillance Act.
The Epsteins were involved in a nasty divorce and during its pendency, the wife and her attorney were sued in Federal Court in the Northern District of Illinois, Eastern Division, by the husband for allegedly violating a portion of The Federal Wiretap Act that authorizes civil actions against persons who violate it. The husband alleged that the wife unlawfully intercepted, disclosed and used the husband’s emails in violation of The Wiretap Act, and that her attorney violated The Act by unlawfully disclosing and using the emails in the divorce proceeding. The husband did not know that the wife had access to his emails until they showed up in response to his lawyer’s discovery request. The husband’s attorney had sent the wife’s attorney a document request asking, in part, for production of any and all communications, documents, emails, text messages, photographs, notes, credit card slips, bank statements or other documents whatsoever which allegedly relate to the wife’s allegation of infidelity. The wife’s lawyer in response to the request produced several emails between the husband and several other women. The messages appeared to have been forwarded from the husband’s email accounts to the wife’s. The husband alleged that the wife must have secretly placed a computer program on his email accounts that automatically forwarded them to the wife.
At the Trial Court, both the wife and her attorney argued that intercepting an email doesn’t violate The Wiretap Act unless it is acquired contemporaneous with the emails transmission. The emails at issue contained dates and times showing that they may not have been intercepted contemporaneous with their transmission. They filed a Motion to Strike and Dismiss the Complaint. The Trial Judge agreed and dismissed The Wiretap Act claims against both the wife and her attorney. The husband appealed.
The Seventh Circuit upheld dismissing the case against the wife’s attorney. The Court held that the wife’s attorney did not disclose or use the emails as defined under The Wiretap Act. Specifically, the Court stated that even if the emails were unlawfully intercepted, the lawyer did not unlawfully disclose their content by producing them in response to the husband’s own discovery request. The Court further stated that the wife’s attorney failed to use the emails because the husband’s own Complaint stated that the lawyer intended to use the emails to embarrass the husband during the divorce litigation. The Seventh Circuit pointed out correctly that The Wiretap Act does not prohibit inchoate intent, rather only actual use.
However, the Seventh Circuit stated that the allegations against the wife could be a legally sufficient claim within the language of The Wiretap Act. The Court noted that there were three independently sufficient reasons why the time markings on the alleged emails did not establish an “impenetrable defense” to The Wiretap Act claims. Therefore, because the emails attached to the Complaint did not conclusively establish that there was no contemporaneous interception, the husband had a legally sufficient claim. The Court further stated that Congress probably didn’t anticipate The Wiretap Act’s use as a tactical weapon in a divorce proceeding.
Justice Richard Posner wrote a concurring Opinion, raising a very interesting issue which was not raised by the litigants. The issue is whether The Wiretap Act should be applicable to the wife’s invasion of the husband’s privacy when the information obtained by her was evidence of adultery which is still technically a crime. Posner stated that “the motive of concealment in such a case is understandable, but if the concealment is of genuine misconduct, I am unclear why it should be protected by the law.” He then further went on to point out that the husband’s lawsuit at issue pursuant to The Wiretap Act is “more than a pure waste of judicial resources: it is a suit seeking a reward for concealing criminal activity”. Judge Posner finished his Opinion by stating that if this issue was raised by the litigants in the case, his view would be that The Wiretap Act failed to create a remedy for the husband here where the plaintiff invokes The Act in an effort to hide evidence of a crime, namely, adultery.