E-mails and divorce   

All in the Family

Dan Stefani

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.

March 2017

We hear it all the time in clients’ initial consultations: Can I look at my spouse’s e-mails on our home computer?

The first question I have is this: How would you acquire such e-mails? We then discuss whether that acquisition or use of e-mails could violate some state or federal law regarding eavesdropping or wiretapping.

The law is still somewhat unclear in Illinois. However, the 7th U.S. Circuit Court of Appeals decided a case on the subject on Dec. 14. In Epstein v. Epstein, No. 15-2076, the 7th Circuit held that putting an auto-forward on your spouse’s e-mail 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. During its pendency, the wife and her attorney were sued in Chicago federal court, 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 e-mails in violation of act, and that her attorney violated the act by unlawfully disclosing and using the e-mails in the divorce proceeding.

The husband did not know the wife had access to his e-mails 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, e-mails, 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 e-mails between the husband and several other women. The messages appeared to have been forwarded from the husband’s e-mail accounts to the wife’s. The husband alleged that the wife must have secretly placed a computer program on his e-mail accounts that automatically forwarded them to the wife.

In the trial court, both the wife and her attorney argued intercepting an e-mail doesn’t violate the Wiretap Act unless it is acquired contemporaneous with the e-mails’ transmission. The e-mails 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 7th Circuit upheld dismissing the case against the wife’s attorney. The panel held the wife’s attorney did not disclose or use the e-mails as defined under the Wiretap Act. Specifically, the court stated that even if the e-mails were unlawfully intercepted, the lawyer did not unlawfully disclose their content by producing them in response to the husband’s own discovery request.

The panel further stated that the wife’s attorney failed to use the e-mails because the husband’s own complaint stated the lawyer intended to use the e-mails to embarrass the husband during the divorce litigation. The 7th Circuit pointed out correctly that the Wiretap Act does not prohibit inchoate intent, rather only actual use.

However, the 7th Circuit stated the allegations against the wife could be a legally sufficient claim within the language of the Wiretap Act. The court noted there were three independently sufficient reasons why the time markings on the alleged e-mails did not establish an “impenetrable defense” to the Wiretap Act claims. Therefore, because the e-mails 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 Congress probably didn’t anticipate the Wiretap Act’s use as a tactical weapon in a divorce proceeding.

Judge 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.”

Posner finished his opinion 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.