What would you do if you discovered your spouse was being unfaithful and you wanted rock solid evidence to present to your divorce lawyer? Be careful not to go to far into your spouse's computer or you may run afoul of applicable wiretapping and surveillance laws.

A recent federal appellate decision from the 7th Circuit in Chicago held that a wife's unauthorized access to her husband's email account possibly violated the federal wiretapping laws. The couple was embroiled in a high-conflict divorce featuring allegations that husband was a serial adulterer.

In the county family court, husband sought discovery of all evidence that supported wife's adultery allegations. Wife obliged, producing a series of damaging emails between husband and several other women. During this discovery, husband learned that wife placed an "auto-forward" rule on husband's email so that, unbeknownst to him, all of his emails were forwarded to wife.

Getting creative, if not desperate, husband filed a lawsuit in federal court against wife and her divorce attorney on the basis that wife's capture of husband's email, and her lawyer's disclosure in the divorce proceeding, violated the federal wiretapping and surveillance act. The federal district court, however, dismissed husband's federal lawsuit.

In reversing the lower court on appeal, the United States Seventh Circuit Court of Appeals held that husband adequately pled a claim under the federal law; but that the case against the lawyer was properly dismissed. The case features a legalistic argument under the Wiretap Act regarding whether wife "contemporaneously" intercepted the emails; this debate was found to of little import by the 7th Circuit's panel in reversing the lower court and remanding the case against the wife.

So now, wife will need to prosecute her divorce while simultaneously defending husband's federal action. The case stands for the proposition that it pays to abide by the rules when conducting discovery in a lawsuit; even a divorce that features a serial cheater.

Post #573

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