Accessing ESI and Eavesdropping Without Consent

During family law litigation, the parties usually have been in an intimate or close relationship and more often than not for years if not decades.  This relationship often gives one or both parties a sense of entitlement in taking liberties normally unavailable to strangers.  It’s a perception implied by the past relationship, although that relationship is for most intents and purposes now over and may have been over for years.  

During the relationship each party often knows the other’s electronic account passwords as a matter of mutual convenience and trust.  After the relationship ends, one or both parties may still have the other’s passwords.  When one of the parties is having difficulty getting evidence to present in family court, the temptation arises to: invade the other party’s personal electronic data from a bank’s online services when he or she probably has been intentionally excluded since the relationship ended; wiretaps the other’s landline telephone or long ago installed an application on the other party’s cell phone to listen and record the other’s calls without the other party’s knowledge; or, installed a GPS application on the other’s cell phone without his or her knowledge to track his or her location (for the purposes of confirming a new relationship or the mischief of the the other party to throw dirt in court).  (These are not far-fetched hypotheticals.)

This post takes a look at the following three questions:  1)  Is it legal for a party to a San Diego family court matter to collect online electronically-stored information (ESI) from the other party’s bank, or eavesdrop, without first obtaining the other party’s consent?  2)  Were a party to collect banking statements through ESI, or eavesdrop, on the other party’s without consent, would the information gained be admissible in family court?  And,  3)  after obtaining banking statements through ESI, or eavesdropping, on the other party without consent would it be ethical for his or her attorney to use such evidence in San Diego family court?

Collecting ESI or eavesdropping of another party without consent is illegal.

As a starting point, the first section of our California Constitution speaks to the inalienable right to protect property and to pursue and obtain privacy.  Article 1, section 1, of California’s Constitution states, “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”  

As to the legality of such methods of gathering evidence, the federal law and the California Penal Code are crystal clear and apply to anyone (i.e., spouses, once-significant others, parents, attorneys, strangers, and others) acquiring electronic information without permission: 

Accessing without consent another party’s online data (bank statements, investment account statements, credit-card statements, etc.) through a computer at a financial institution or which is used in interstate commerce is illegal under federal law:  

  • 18 USC section 1030(a) states, “Whoever – . . .  (2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains- (C) information from any protected computer; . . . shall be punished as provided in subsection (c) of this section.  
  • Under 18 USC 1030 (e)(2), a protected computer means a computer which is “(A) exclusively for the use of a financial institution . . .; or (B) which is used in or affecting interstate or foreign commerce . . .” 
  • 18 USC section 1030(c) reflects different sentencing guidelines depending on the nature of the invasion, but at a minimum the sentence is “a fine under this title or imprisonment for not more than one year, or both, in the case of an offense under subsection (a)(2) . . . of this section . . .”

Accessing data on another person’s computer without permission is a felony under California law:

  • California Penal Code section 502(c) states that (with the exception of duties within the scope of employment), any person who commits any of the following acts is guilty of a public offense:

    (1) Knowingly accesses and without permission alters, damages, deletes, destroys, or otherwise uses any data, computer, computer system, or computer network in order to either (A) devise or execute any scheme or artifice to defraud, deceive, or extort, or (B) wrongfully control or obtain money, property, or data.

    (2) Knowingly accesses and without permission takes, copies, or makes use of any data from a computer, computer system, or computer network, or takes or copies any supporting documentation, whether existing or residing internal or external to a computer, computer system, or computer network.

    (3) Knowingly and without permission uses or causes to be used computer services.

    (4) Knowingly accesses and without permission adds, alters, damages, deletes, or destroys any data, computer software, or computer programs which reside or exist internal or external to a computer, computer system, or computer network.

    (5) Knowingly and without permission disrupts or causes the disruption of computer services or denies or causes the denial of computer services to an authorized user of a computer, computer system, or computer network.

    (6) Knowingly and without permission provides or assists in providing a means of accessing a computer, computer system, or computer network in violation of this section.

    (7) Knowingly and without permission accesses or causes to be accessed any computer, computer system, or computer network.

    (8) Knowingly introduces any computer contaminant into any computer, computer system, or computer network.

    (9) Knowingly and without permission uses the Internet domain name of another individual, corporation, or entity in connection with the sending of one or more electronic mail messages, and thereby damages or causes damage to a computer, computer system, or computer network.

  • California Penal Code section 502(d)(1) states, ”Any person who violates any of the provisions of paragraph (1), (2), (4), or (5) of subdivision (c) is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years, or by both that fine and imprisonment, or by a fine not exceeding five thousand dollars ($5,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.”
  • California Penal Code section 631(a) states:  “Any person who, by means of any machine, instrument, or contrivance, or in any other manner, intentionally taps, or makes any unauthorized connection, whether physically, electrically, acoustically, inductively, or otherwise, with any telegraph or telephone wire, line, cable, or instrument, including the wire, line, cable, or instrument of any internal telephonic communication system, or who willfully and without the consent of all parties to the communication, or in any unauthorized manner, reads, or attempts to read, or to learn the contents or meaning of any message, report, or communication while the same is in transit or passing over any wire, line, or cable, or is being sent from, or received at any place within this state; or who uses, or attempts to use, in any manner, or for any purpose, or to communicate in any way, any information so obtained, or who aids, agrees with, employs, or conspires with any person or persons to unlawfully do, or permit, or cause to be done any of the acts or things mentioned above in this section, is punishable by a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in the county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170, or by both a fine and imprisonment in the county jail or pursuant to subdivision (h) of Section 1170. If the person has previously been convicted of a violation of this section or Section 632, 632.5, 632.6, 632.7, or 636, he or she is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170, or by both that fine and imprisonment.”
  • California Penal Code section 631(c) states:  “Except as proof in an action or prosecution for violation of this section, no evidence obtained in violation of this section shall be admissible in any judicial, administrative, legislative, or other proceeding.”
  • California Penal Code section 632.5 states:    “(a) Every person who, maliciously and without the consent of all parties to the communication, intercepts, receives, or assists in intercepting or receiving a communication transmitted between cellular radio telephones or between any cellular radio telephone and a landline telephone shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), by imprisonment in the county jail not exceeding one year or in the state prison, or by both that fine and imprisonment. If the person has been previously convicted of a violation of this section or Section 631, 632, 632.6, 632.7, or 636, the person shall be punished by a fine not exceeding ten thousand dollars ($10,000), by imprisonment in the county jail not exceeding one year or in the state prison, or by both that fine and imprisonment. . . .”

Using an electronic tracking device or an application making an unknowing party’s cell phone a tracking device is illegal.   

  • California Penal Code section 637.7 states:  “(a) No person or entity in this state shall use an electronic tracking device to determine the location or movement of a person. . . . (d)  As used in this section, “electronic tracking device” means any device attached to a vehicle or other movable thing that reveals its location or movement by the transmission of electronic signals. . . . (e)  A violation of this section is a misdemeanor.

ESI and information obtained by eavesdropping without consent is inadmissible in family court.

The California Family Code makes evidence gained from eavesdropping inadmissible in family court (Fam. Code sec. 2022(a)), and the effort to obtain it, if it appears to the judicial officer as having been in violation of the Penal Code eavesdropping statutes (Pen. Code sec. 630, et seq.), may be referred to the District Attorney for investigation and prosecution (Fam. Code sec. 2022(b)).

An attorney knowingly using evidence gained through online ESI, or eavesdropping, without consent is subject to discipline by the State Bar of California.

The idea for this post came from a Missouri Supreme Court disciplinary opinion issued April 5, 2016, that adequately answers whether an attorney can use information that was illegally obtained:  In re Joel B. Eisenstein.  While it’s not a California opinion, and Missouri’s ethics rules are unlike the California Rules of Professional Conduct, the facts are illustrative of the bright line which a family law attorney crosses at his or her peril in using such evidence in court.

Missouri attorney Joel Eisenstein’s client, Husband,  who was in the throes of divorce litigation, accessed Wife’s email account without her consent, obtained her most current payroll statements and a list of questions Wife’s attorney had prepared and sent to Wife for her review and direct examination at trial.  Husband then delivered this evidence to Mr. Eisenstein.

On the second day of trial, Mr. Eisenstein provided to Wife’s attorney as an exhibit the list of questions which were prepared by Wife’s attorney and obtained from the email account.  Wife’s attorney asked for a hearing (a trial within the trial) on the admissibility of the exhibit at which time Husband admitted how he had obtained the evidence.  His attorney, Mr. Eisenstein, was also examined by Wife’s attorney and admitted he had not immediately disclosed receipt of the evidence to Wife’s attorney.

To make matters worse, three days later in an email to Wife’s attorney, Mr. Eisenstein appears to have threatened her:

“Rumor has it that you are quite the gossip regarding our little spat in court.  Be careful what you say. I’m not someone you really want to make a lifelong enemy of, even though you are off to a pretty good start. Joel.” .  

Following an ethics inquiry into his handling of the divorce case, the panel found Mr. Eisenstein violated Rules 4-8.4(c), 4-8.4(d), 4-3.4(a) and 4-4.4(a) of the Missouri Rules of Professional Responsibility.  From the opinion:

  • “Rule 4-8.4(c) prohibits a lawyer from engaging “in conduct involving dishonesty, fraud, deceit, or misrepresentation.” Mr. Eisenstein’s violation of Rule 4-4.4(a) by obtaining evidence procured through improper means and failing to immediately disclose the same to opposing counsel demonstrates a violation of Rule 4-8.4(c).”
  • “Rule 4-8.4(d) prohibits a lawyer from engaging ‘in conduct that is prejudicial to the administration of justice.’ Mr. Eisenstein’s e-mail to Ms. Jones clearly implied that Ms. Jones would suffer professional retribution if she further discussed the issue. Threatening opposing counsel during the course of litigation or to avoid an ethics complaint constitutes conduct prejudicial to the administration of justice. Mr. Eisenstein’s conduct violated Rule 4-8.4(d).”
  • “Rule 4-3.4(a) provides, in part, that a lawyer shall not ‘unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value.’  Mr. Eisenstein violated Rule 4-3.4(a) by concealing his possession of Wife’s payroll information and Ms. Jones’ direct examination questions until the second day of trial.”
  • “Rule 4-4.4(a) prohibits a lawyer from using ‘methods of obtaining evidence that violate the legal rights’ of a third party [here, Wife’s attorney].  Comment 1 to Rule 4-4.4(a) specifically notes that the rule is intended to prevent ‘unwarranted intrusions into privileged relationships, such as the client-lawyer relationship.’”

Mr. Eisenstein was suspended indefinitely from the practice of law with permission to apply for reinstatement after six months. The grounds for this discipline were the unethical and illegal procurement of evidence through others’ emails, including an opposing counsel’s work product (i.e., impressions, thought processes, potential trial strategy, etc.).  

In California, after a referral by the family court judge as authorized by Family Code section 2022(b), Husband’s criminal prosecution would be governed by Penal Code section 631(a), along with perhaps other penal code sections.  

As for disciplinary proceedings, an ethics inquiry would presumably involve past State Bar ethics opinions, case law, and the following Rules of Professional Conduct:

  • Rule 5-200 requires that an attorney presenting a case to a family court judge employ “means only as are consistent with truth” and shall not seek to mislead the judge by false statement of fact. 
  • Rule 3-210 prohibits an attorney from advising the violation of any law, rule, or ruling of a tribunal, unless the attorney believes in good faith that such law, rule, or ruling is invalid.  The Comment to this rule states the rule is intended to apply not only to the prospective conduct of a client but also to the interaction between the attorney and client and to the specific legal service sought by the client from the attorney.  
  • Rule 3-700(B)(2) requires an attorney to withdraw from representation if the attorney knows or should know that the continued employment will result in a violation of the Rules of Professional Conduct. 
  • Rule 3-700(C)(1) permits the attorney to request permission to withdraw if the client seeks to pursue an illegal course of conduct or insists the attorney pursue a course of conduct that is illegal or that is violation of the Rules of Professional Conduct.

One problem for Husband’s attorney is that Wife’s attorney’s email containing the prepared direct-examination questions are protected by the attorney-client privilege.  Transmission of information between attorney and client is presumed to be privileged, regardless of its content.  (Clark v. Superior Court (2011) 196 Cal.App.4th 37, 49.)  “The attorney-client privilege is a core value of the American justice system.  It has been the ‘hallmark of our jurisprudence for almost 400 years.’ Costco Wholesale Corporation v. Superior Court (2009) 47 Cal.4th 725.”  (The State Bar of California Standing Committee on Professional Responsibility and Conduct (“Standing Committee”), Formal Opinion No. 2013-188.)   “[W]henever a lawyer ascertains that he or she may have privileged attorney-client material that was inadvertently provided by another, that lawyer must notify the party entitled to the privilege of that fact.” (State Compensation Insurance Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644, 656-657.)   This includes “materials protected by the attorney work-product doctrine, irrespective of whether the documents are marked as ‘confidential’ or ‘work product.'”     (Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807, 817-818.)  Under California law, Husband’s attorney would have had to notify Wife’s attorney that he had received the privileged materials, but because of Husband’s privilege he would not have been at liberty to discuss how they were received without Husband’s authorization to disclose his own privileged information.

Whether to destroy or return privileged materials to the party entitled to the attorney-client privilege is left to the discretion of the attorney receiving it.   (Standing Committee, Formal Opinion No. 2013-188, p.3fn 2, citing ABA Model Rules Prof. Conduct, Rule 4.4, Comment [3] [“Some lawyers may choose to return a document unread, for example, when the lawyer learns before receiving the document that it was inadvertently sent to the wrong address. Where a lawyer is not required by applicable law to do so, the decision to voluntarily return such a document is a matter of professional judgment ordinarily reserved to the lawyer.”]; see also p. 3 fn 3, “While California has not adopted the ABA Model Rules, they may nevertheless be used as guidance for lawyers absent on-point California authority or a conflicting state public policy. City & County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal. 4th 839, 852 . . .”].)   

Other problems for the the attorney who does not notify the party whose privileged information is in the attorney’s hands are criminal and civil liability.  A conviction of receiving or receiving stolen property under Penal Code section 496 may subject an attorney to discipline.  (See In re Plotner (1971) 5 Cal.3d 714 [attorney disbarred after convictions for receiving stolen property and illegally supplying or administering an abortion]; see also Williams v. Superior Court (1978) 81 Cal.App.3d 330 [attorney convicted of concealing stolen property]).  (Standing Committee, Formal Opinion No. 2013-188, p.3, fn 3.)   There is also the potential for civil liability for conversion (civil theft) and invasion of privacy.  So, to protect the attorney from criminal and civil liability, and from discipline from the State Bar, the attorney must notify the  party of receipt of his or her privileged information.

if the facts of In re Joel B. Eisenstein took place in San Diego family court, and Husband’s attorney did not notify Wife’s attorney whose client’s privileged materials are in Husband’s attorney’s possession and then knowingly offers into evidence at trial illegally-obtained information, calamity would ensue for both Husband and Husband’s attorney.  His attorney would face an appearance of participation in and potential criminal liability for computer crimes and receiving stolen property and civil liability for invasion of privacy.  

Playing this out, at trial, once Wife’s attorney draws attention to the fact that Husband provided a copy of the prepared direct examination of her client and emails including payroll statements which were not properly subpoenaed, Wife’s attorney would request a hearing on admissibility of the evidence.  The family court judge would inquire of Husband’s attorney how this information was obtained, and Husband’s attorney would claim the attorney-client privilege unless Husband permitted his attorney to disclose how the evidence was collected.  If Husband gave permission to disclose the collection, then it would constitute an admission of guilt and Husband would likely face a referral to the District Attorney for prosecution pursuant to Family Code section 2022(a) for violations under Penal Code sections 502 and 631(a).  If Husband refused permission, then Rules 5-200 in combination with Rule 3-700(B)(2) or Rule 3-700(C)(1) would likely force Husband’s attorney to request he be relieved of his duties as Husband’s attorney in the case for an illegal course of conduct, even though Husband’s attorney may still face criminal (receiving and concealing stolen property) and civil (conversion and one or more of the invasion of privacy torts) liability.  This scenario does not play out well, whether in Missouri or California. 

In conclusion, the client that expects to use in family court another party’s illegally-collected confidential and privileged information without consent has an unreasonable expectation which a prudent attorney cannot allow if he or she wants to continue practicing law.  Although there is a good-faith exception, an attorney will rarely if ever advise his or her client to violate the law, let alone laws which prohibit non-consensual access to electronically-stored information and eavesdropping to obtain evidence.  The prudent attorney will immediately notify the offended party or, if represented, his or her attorney of the receipt of any privileged information and withdraw from the case to avoid criminal and civil liability and discipline from the State Bar of California.  

Please feel free to comment.