Increasingly, divorcing spouses are using data breach and privacy laws to sue each other in federal and state court. This leads to “spillover” litigation, as the divorce proceeding spills over into another separate action. Divorce lawyers would be well served to familiarize themselves and their clients with applicable data breach law.
The case of LaRocca v. LaRocca, 2014 WL 5040720 (E.D. La. Sept. 29, 2014) illustrated this trend in the context of claims under the Electronic Communications Privacy Act (“ECPA”). This law prohibits unauthorized access to emails, among other things. In the LaRocca case, Eloisa LaRocca accused her former husband of doing just that in order to gain an upper hand in the divorce. The ex-husband moved for summary judgment on the grounds that she had no expectation of privacy. The court denied the summary judgment, ruling that once LaRocca filed for divorce, her emails were off limits and that she had a reasonable expectation that they would not be reviewed by her soon to be ex husband.
The lesson should be clear to divorce litigants and divorce counsel on both sides. Once divorce papers are served, spousal email accounts (and any other type of digital account) are off limits. Although compliance appears to be theoretically simple, in practice this often proves difficult. First, most participants in a divorce are simply ignorant of the law. They cannot conceive of the fact that while reading their spouse’s emails yesterday without permission was fine, it now creates civil and criminal liability. Unfortunately, as the old platitude goes, ignorance of the law is no defense.
Second, emotions in divorce proceedings often drive a higher percentage of irrational acts than in typical commercial litigation. The fact of the matter is that even if a spouse realizes that accessing the ex’s email account is wrong, the desire to gain the upper hand in divorce or custody proceedings often proves too tempting.
Third, there exists the possibility of accidental access. Just as married couples comingle finances and parenting duties, they have often comingled their digital lives. As such, devices containing saved passwords and cookies often fall into the other spouse’s hands as a function of dividing up marital property. As a practical matter, most spouses do not maintain strict separation of their digital lives and this leads to access events.
Fourth, destruction or loss of evidence is common. Because of this, the data breach plaintiff must act fast to file an action and get subpoenas out to the relevant internet service providers and third party witnesses in order to prove up the claims of unauthorized access. Many service providers keep server logs only for a few months whereas many times actions are not filed for many months if not years after the breach occurred.
Increasingly, family law practitioners and data breach attorneys will need to collaborate to keep divorce litigants from making costly mistakes that either give rise to civil claims or effectively cripple a case before it gets off the ground. Knowledge of the law is paramount. Equally important is the knowledge that only the most sophisticated internet users experience true anonymity. Attorneys and forensic experts experienced in marshalling digital evidence are usually able to connect the dots in order to prove liability for claims including unauthorized access, invasions of privacy and anonymous defamation, among others. Divorce is tough enough, with the right legal counseling, participants can avoid additional civil liability or properly leverage civil claims for a better divorce outcome.