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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Imagine the person with whom you are having an affair does not accept your effort to break it off.  Imagine further that you've had the bad judgment to allow this person to take nude digital images of you during your tryst.

What seemed like a good idea in the heat of the moment now threatens to ruin your life.  Can you convince a court to enjoin this person from creating a web site monument to your activities?

The Maine Supreme Judicial Court said, "yes" in the case of Ellen Clark vs John McLane.  The following salacious facts are taken directly from the Maine High Court's opinion:

Clark and McLane were engaged in an intimate relationship for several months from 2011 to 2012.  On January 13, 2013, after their relationship had ended and after Clark had notified McLane’s wife of the affair, McLane sent an email to Clark containing a litany of insulting and derogatory remarks.  He informed her that he and created a website in her name on which he planned to post nude photographs of her, and that he was also setting up accounts with three major search engines so that any search of her name would first yield a result for the website that he had created.  In addition, he told her that he was creating an account on a video-sharing website in her name, that he would be sharing the websites with her friends, that he had already gathered eighteen or more email addresses from her work colleagues to share the websites with them, and that potential employers would see the websites as well.  McLane further stated that ‘[g]uys will have your cell number, as well as your work number to a hold of you [sic] and ask you out.’  McLane provided a link to a website in her name that he had already set up; it consisted of a single page stating, ‘The naked pictures of EJ Clark will be coming soon…along with her cell phone number and her work number for your to call and arrange a date.’

Wow, jeeze and yikes all in one gasp.  Yes, this has really happened folks; this guy is out there, in spades.

The trial court enjoined McLane from having any contact with Clark, so she will not need to worry about future heart-stopping emails from this jerk.  The court also enjoined him to, "immediately disable any sites/efforts designed to disseminate any information about [Clark] to others..."  Incredibly, McLane appealed.

The legal question posed in the appeal is whether a court sitting in equity can enjoin a person from abusive conduct under facts such as those set forth above which, by the way, are undisputed.  McLane conceded that he sent the email referenced above, arguing in a two-page appellate brief that, "the ONLY conduct appellant engaged in was to send an inappropriate email and create an empty website."  Really...?

In rejecting McLane's argument that the undisputed facts of this case are insufficient to support a finding that his conduct was abusive, the High Court affirmed the injunction against McLane on the basis of a plain reading of Maine's "protection from abuse" statute that procribes a "dating partner" like these two lovebirds from committing "any form of abuse" to the other partner.  The Clark decision deconstructs the term "abuse" in excruciating detail.

Calling a spade a spade, what Mr. McLane threatened to do to his former lover was abusive; even the threat of such conduct was abusive in our simple mind over here at the Law Blogger.

But here's the real lesson, and its for folks like Ms. Clark: when you are venturing out into the choppy waters of infidelity, take exceedingly great care in your selection of a fellow sinner, as the consequences flowing from your selection can easily swamp your ship.  The other corollary to this tale is that digital pics in the wrong hands can cause great pain thus, think twice before allowing someone to record your image.

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A controversial new application for Motorola's popular Droid phone has apparently been pulled before it had a chance to hit the cell phone application market-place.

The idea behind the "Secret SMS Replicator" application is to forward text messages from the target phone to a designated phone.  What's more, the application on the target phone is invisible and cannot be detected.

Similar applications have failed Apple's application store approval process.  In the case of the SMS Replicator, Google said the covert application violates the "Android Market Content Policy."

Just because this application did not make it to market does not mean it won't be applied.  The technology is available to those who do not mind installing rogue applications.

In Michigan, it is illegal to download the emails of another person without permission by using spyware and keystroke programs.  These products, however, remain on the market.

Perhaps the best policy if you are in a marriage or a committed relationship is to stay faithful.  On the other hand, if you believe your spouse or significant other has strayed, or is thinking of doing so, it may be time to move on through separation or divorce.

Often, a cuckholded spouse feels the need to acquire rock-solid proof of infidelity. Sometimes, this is sound pre-divorce strategy. Getting the goods on your significant other, however, should never come via breaking the law.

Good luck out there!

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