Divorce can be a horrendous process for those directly involved. But it can also be challenging for employers who are inadvertently dragged into divorce proceedings. This is because a company’s interests are increasingly put at risks as digital evidence in the form of text messaging or emails becomes “Exhibit A” in divorce trials. 

In this regard, NPR has an interesting article discussing the increasing prevalence of using text messaging in divorce (CU In Court: Texts Can Be A Divorce Lawyer’s Dream“). For the article, NPR interviewed private investigator Stephen Ward of Pinkerton Consulting and Investigations. Mr. Ward had this to say about text messages found on smart phones: 

It’s a treasure trove of information … [but] if they’re on a company phone? You could be looking at things that are trade secrets, that you’re not entitled to see … It’s actually corporate property, it’s not yours, and you’ve done something completely illegal (referring to stealing a password to access the text messages).

Speaking from experience, I was retained a few years ago as an e-discovery consultant in substantially the identical scenario Mr. Ward described. Specifically, the wife of a rising star at a company allegedly accessed his employer provided smart phone to confirm suspicions of an extramarital affair. She was right, but the manner in which she accessed the phone created various issues under computer related statutes and other legal issues.  

I was hired to consult with the wife’s attorney to sort those issues out and collaborate with the husband’s employer to make sure emails and text messages relevant to the divorce were preserved and would be available for the pending divorce litigation. 

What Should Employers Do When Company Smart Phones and Emails are Involved in Divorce Litigation?

Based on the preceding experience and conducting other employee investigations involving technology, a number of issues arise that should be immediately discussed with legal counsel. But a couple of considerations: 

• Spouses Aren’t The Only Ones Who are the Last to Know. 

Employers should expect that they will be at the bottom of the list to find out that company devices and the digital evidence they contain are likely to be critical evidence in a divorce proceeding. Let’s face it, not many employees or executives want to initiate the conversation about needing to preserve evidence because their spouse discovered incriminating text messages on their company provided smart phone.

In fact, knowing this in my case, the decision was made to send correspondence directly to the employer to request that it preserve the husband’s emails and text messages in order to make sure that such evidence would be there for the divorce proceeding. This not only made sense from a preservation obligation, but it also headed off potentially increased costs for retrieving such information months down the road. 

• A Cheating Spouse is Bad. Committing a Crime is Worse.

Accessing without authorization a spouse’s smart phone, tablet, company laptop, etc. can expose a person to civil and criminal charges – even if such access proves the spouse was cheating. In other words, the ends do not justify the means.

Consider for example an ongoing Michigan case involving Leon Walker who is charged with felony misuse of a computer, which carries up to five years in prison, for his unauthorized access of his then wife’s Gmail account. This is really a tragic story in that Mr. Walker suspected that his wife was involved in an affair and he confirmed this suspicion after he logged into her email account without her permission. He was able to do this because his wife kept the password next to the computer.

To avoid potential criminal or civil liability for the unauthorized access of digital evidence, it is critical to consult with an attorney so that emails or text messages can be properly obtained through subpoenas or the discovery process. 

• Employers Should Hope for the Best but Plan for the Worst.

Employers should take steps to educate employees about the proper use of employer provided technology devices. Equally as important, employers should frequently stress that company information should not be transferred to personal devices or otherwise commingled with personal information. But employers need to be realistic and expect that these points will be ignored.

For this reason, companies also need to impress upon employees that if they have reason to believe company devices, text messages, emails or other information may be involved in litigation, then management must be made aware in order to make strategic decisions for preserving this information in a cost-effective manner. In addition to divorce cases, trade secret misappropriation claims, employment discrimination, or harassment claims are also common examples of where such preservation obligations may be triggered.    

For more information about preserving digital evidence or conducting technology related investigations, contact Jason Shinn.