Dallas Divorce Law Blog by Michelle O'Neil

Law Firm Sued Over Divorce Client’s Use of Spyware

A law firm in Chattanooga, Tenn., has been sued for $2 million by a man who says one of its lawyers tried to use improperly intercepted e-mail in a divorce case.

Farrell Hayes says in the suit that the law firm Berke, Berke and Berke represented his wife, Alice Suzanne Hayes, in a divorce action, the Chattanoogan.com reports. The suit claims Alice Hayes installed “eBlaster” software on Farrell Hayes’ laptop computer that intercepted his communications.

The suit says lawyer Marvin Berke used or tried to use some of the e-mail in the divorce case. Berke told the Chattanoogan that the suit will be “vigorously defended.”

From the ABA Law Journal Law News Now

Also Law.com Legal Blog Watch

Note:  For the most part, it is illegal to use spyware on a computer that belongs to another person, even if the other person is a spouse.  A lawyer that uses information obtained illegally through spyware or similar methods can be held both civilly and criminally liable.  Even if a lawyer produces documents in discovery that were obtained this way, that would be “use” and the lawyer could be liable.  LAWYERS BEWARE!

It’s that time again — the time when the Lege meets and changes “everything”, then we all have to run around and figure out how to adjust.  Today, SB 445 was voted favorably out of the Senate Jurisprudence Committee.  This bill, if made law, would require the Texas Supreme Court to promulgate rules that would allow jurors to ask questions of a witness or to the court and take notes during civil trials.  Can you imagine being in the middle of a trial, presenting your evidence, when all of a sudden a juror raises his hand and asks a question?  [Lawyers shudder across the state... thinking how do you object to an inappropriate question by a juror!]   But, on the other hand, it would give insight to what jurors are interested in and help frame the issues for the trial.  Wow!

Yesterday I received an email from a client forwarding an email from her husband, where the email string from the husband included a conversation with *his* lawyer.  I’m sure the lawyer will not be happy when he finds out that I received his email/advice from his own client. 

The attorney client privilege protects confidential communications between a lawyer and client, but only if those communications are kept confidential.  Including anyone else in the communication  will negate the privilege.  So, if you take your Mom with you to visit your Dallas divorce attorney, the privilege will be negated.  If you tell your best friend what your attorney told you during a confidential meeting, the privilege will be negated.  And, if you forward to anyone else a confidential email your attorney sent to you, the privilege will be negated.  This includes blind cc on emails to or from your attorney too.

Why is this important?  You and your attorney may discuss some strategy in your case.  If you share that with someone outside your attorney’s office/staff, even if it isn’t the opposing party, then the opposing party can legally broach the attorney-client privilege and use whatever communication has been released as part of the case. 

So, for example, say that you confide in your divorce attorney via email that you met a new love interest on Facebook and want to go on a date.  Then, your attorney responds via email that you should wait.  You forward that email to your new love interest and say my attorney says to wait, but I just won’t tell her what we’re doing.  Then, the love interest doesn’t work out and sends that email on to the spouse you are divorcing.  Attorney-client privilege is waived and that evidence can be used against you in your divorce case.

So, the lesson, keep private conversations between you and your attorney just that, private.

Houston televisions stations had a boone of advertising during the superbowl from an online dating site for married people ashleymadison.com.  The CEO said in the Houston paper that it made financial sense because Houston and other Texas areas are a fast growing market for the company.  You can imagine that local marriage counselors and clergy criticized the ads.

Maybe they did target the Dallas market.  Did you see any ads for this company during the superbowl?

As a Dallas divorce lawyer, it makes me think that I need to investigate whether the opposing parties in my divorce cases might have a profile on such websites.  Having been playing on facebook today, I am pondering creating a new question for discovery interrogatories and production inquiring about opposing parties’ online presence.  Also, I’m thinking I might ought to investigate my own client’s participation online to prepare for what might be out there for some other interprising attorney to find.

Telephone Recording Device

A Dallas Divorce client asked me a question last week:  My ex left me a really hateful voice mail message – how can I preserve that voice mail message in case we need to use it in the future?

Here’s an answer….  This telephone recording device that I found at Radio Shack.  You put part of it in your ear and the other end sticks out a bit.  Plug it into a handheld recording device — I use one that records digitally and you can download into the computer as an mp3 file. 

So, hook up the device and set it to start recording; dial your voice mail and let it play while you record.  Then download into the computer and save it forever. 

A couple of hints… if you share your computer with your kids, you might password protect the voice mail file so your kids can’t listen.

Also, if you get an urge to record live telephone conversations, please keep in mind that the law only allows you to record a telephone conversation to which you are a party.  If you are participating on the phone, you can record your conversation.  Understand, you cannot record your children’s conversations, your spouse’s conversations, or any other conversations where you are not a part of the exchange.  That would be a violation of federal law!

PROVING SEPARATE PROPERTY

If a spouse wants to keep certain property after the divorce, it must be proven in court that it should be considered separate property. That determination (also referred to as the “inception of title” rule) is usually made according to when the item was purchased. The simplest way to prove this is to produce a title or receipt that shows the purchase date was prior to the marriage.

Also, if clear and convincing evidence is presented, assets purchased during the marriage using separate property funds can also be considered as separate property. The courts refer to this as “tracing.”

Don’t just take for granted that your spouse “knows” that such-and-such was your’s before the marriage.  If you do not prove the separate property nature of the asset, it will be presumed to be community property and subject to division in the divorce.  This is where a document trail is very valuable.  Show, for example, where your house was purchased before the marriage using deed record.  Or, provide a will and transfer documents to prove that a bank account holds only money received as inheritance when your mother died.  If you got a piece of jewelry as a Christmas gift, show a picture of opening the gift Christmas morning.

Divorce Procedure… the Discovery Process

 The next step in the divorce process is discovery. This procedure allows both sides to determine the size of the community estate and to learn the position the other party will take on certain issues. Discovery can be written or oral.

Written Discovery During Divorce 

Request for Disclosure: These are standard questions that are asked in every civil suit. Parties are required to identify persons with information relevant to the case, identify expert witnesses, detail the legal contentions and specify any economic damages.

Interrogatories: One of the most useful pretrial discovery methods, interrogatories are a set of written questions sent to the opposing party that require responses about relevant issues, such as the location of bank accounts, balances in those accounts and signatory privileges on the accounts. Although almost anything relevant to the case can be asked, the total number of questions is limited to 25.

Request for Production of Documents: This discovery tool allows a party to request copies of documents relevant to the issues in the case. Just about any document can be requested. The most frequently requested items are records reflecting bank accounts, 401(k) plans, stock options, income, gifts to people other than the spouse, safe deposit boxes, telephone records and insurance plans.

Request for Admission: These are statements that the opposing party must either admit or deny. If they refuse, they must state a reason why the statements can neither be admitted nor denied. The person answering these requests will be stuck with the answers, and failure to answer them will result in all of the requests being deemed admitted.

Sworn Inventory and Appraisement: This type of discovery is unique to divorce cases. It requires the answering party to list every asset he or she knows about. It also requires the party to characterize the assets as either separate property or community property and to place a value on it. This document is signed under oath, so a party who deliberately hides assets and keeps them off of the inventory will be subject to punitive remedies from the court.

Oral Discovery During Divorce

Oral discovery is in the form of depositions. These are pretrial witness examinations taken under oath in front of a court reporter. Any witness with information that will affect the case can be deposed. Under Texas law, the deposition testimony can be presented to the court as if the witness were testifying in person before the court.

The deposition is an incredibly useful tool because it locks the witness into the testimony he or she will give. The witness cannot come back later and change his or her story regarding a certain event. If they do this, then the deposition can be used to challenge their truthfulness as a witness.

Married internet browsers beware:  information obtained from internet browser history and spyware is being used as evidence in divorce cases.  One survey shows 79% of divorce attorneys reported use of internet browser history as evidence, while 44% show increase in spyware use.  Many people use the internet to act anonymously, but in reality using the internet is one of the more public things a person can do.

Trackers should also beware.  Some tracking software can be considered an invasion of privacy in violation of certain laws restricting wiretapping.  Keystroke analysis is one such type of tracking that can cause problems. 

In Dallas divorces, we are seeing an increase in invasion of email accounts to obtain evidence.  This can also be problematic and a violation of the law.

A recent survey of nation-wide divorce lawyers confirms a local trend — electronic evidence is being used more widely in divorce litigation.  E-mail is the most prevalent form of electronic evidence being used, but text messages and GPS tracking are other forms that litigants are finding informative. 

In Dallas area divorce litigation, there has been a distinct increase in requests for seizure of computer equipment for analysis by forensic computer experts.  Forensic (which means used in court) computer experts are able to locate information on a hard drive that was previously deleted.  The delete key is actually a fallacy — deleting information from a computer may delete it from normal view, but the information remains on the hard drive until that particular closet of memory has been written over by new information. For example, I have used this type of evidence to identify hidden assets in a property division. 

It does appear that women present electronic evidence for use in litigation more than men, according to the nation-wide survey.

The New York Times ran an article on February 13, 2008, about the increasing controversy over religion in custody cases. See article here. Increasingly, people of different religions marry and divorce, then disagree over which religion(s) to introduce to the children. Or, tensions can emerge when one parent becomes more fundamentalist in their faith than previously.

As a general rule, a judge will not — and probably cannot — pick one religion over another as preferable. The constitutional freedom of religion that we here in American experience also carries over to custody cases. A judge may decide whether either or both parents have the right to make decisions about the child’s religion while the child is in that parent’s care. Usually, a parent may address religion or religious beliefs with the child while the child is with them during parenting time. But, short of finding some harm to the child from the parent’s religion or beliefs, a judge will probably stay out of the fray.