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Electronic evidence guidelines in divorce cases still being defined.

Article Excerpt
After finding a love letter that her husband, William, had written to another woman, Mary White hired an investigative research company to copy his computer files--containing e-mail correspondence between him and his girlfriend as well as Internet images he had accessed--from the family's hard drive without his permission. She sought to use this evidence in divorce proceedings against him.

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William filed a motion to suppress the evidence, claiming that his wife had invaded his privacy and violated New Jersey's wiretap act. But in the state's first ruling specifically interpreting the statute, Judge David Issenman denied the motion, noting that William shared the computer, which was located in a family room, with other family members. Issenman said that William could have used simple privacy protection measures but did not, and noted that the wiretap act applies to communications currently being transmitted rather than those that have already been sent and saved. (White v. White, 781 A.2d 85 (NJ. Super. 2001).)

In the seven years since that case examined this emerging issue, the popularity and accessibility of the Internet have continued to grow, and use of electronic evidence in lawsuits has increased, including in divorce cases. Family lawyers report that they are seeing more divorce cases in which e-mails are produced in discovery, as well as cases in which spouses request that other types of online activities, such as those tracked by spyware programs, be admitted as evidence.

In a recent American Academy of Matrimonial Lawyers (AAML) surveyor 600 attorneys,...

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