Illegal electronic evidence can be voice or video recordings, phone recordings, intercepted text messages or e-mails or screen shots captured by spyware. This thoughtful 2005 Florida case describes what a trial court should do when faced with illegal electronic evidence. Click here to read O'Brien v. O'Brien, 899 So.2d 1133 (Fla. 5th DCA 2005), which was a divorce case. When marital discord erupted between the Husband and the Wife, the Wife secretly installed a spyware program called Spector on the Husband's computer. It is undisputed that the Husband engaged in private on-line chats with another woman while playing Yahoo Dominoes on his computer. The Spector spyware secretly took snapshots of what appeared on the computer screen, and the frequency of these snapshots allowed Spector to capture and record all chat conversations, instant messages, e-mails sent and received, and the websites visited by the user of the computer. When the Husband discovered the Wife's clandestine ... Read More >
Illegal Electronic Evidence and Family Law Part 1: Attorney Beware!
Lawyers can be sued, arrested and sent to prison and disbarred for mishandling illegal electronic evidence, such as recordings, e-mails and text messages. This article is the first in a series on what makes electronic evidence illegal, the many ways that electronic evidence is being obtained illegally these days, how law firms and clients can safeguard their computers and phones and what can happen to clients and lawyers who break the law. This first article focuses on what attorneys should never do with illegally obtained evidence.An attorney can face personal, criminal and civil liability for using or disclosing an illegal recording or illegally intercepted electronic communication (e-mail or text message) provided to the attorney by a client. For example, the following can be separate and independent federal and state wiretap act violations: (1) a client's disclosure to an attorney of an illegally obtained e-mail, (2) the attorney's disclosure to his staff, co-counsel or expert ... Read More >