Instant message, instant e-mail, instantly gone?

Fort Worth Business Press
November 7, 2003
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You've had a hunch for a long time that your spouse is having an affair. He or she has been working late at night at the office, and when you call, no one answers. Perhaps you've discovered him or her up in the middle of the night typing away on the computer, sending and receiving e-mails, or instant messaging. But there's no way to find out what is being said in those e-mails, right? The answer is... not necessarily.

More and more, we live in a world of instant information - instant messaging, e-mailing, and text messaging. Malls have computers set up to "check" your e-mail while you shop; coffee bars are popping up in larger cities where people can sip their espressos while they chat online.

As people work longer hours, these high-tech means of communications are frequently used more often than the "old fashioned" way of communicating in person or by telephone. With the click of the "send" button, we can deliver quick messages to someone's Palm Pilot, computer or telephone. Many unskilled operators of these high-tech gadgets imagine that these instant messages or e-mails can also be deleted just as instantly, leaving no trace of the message. But are they really gone?

The simple answer is "no." Now, you may be asking yourself: why do we really care if these messages are lingering out there somewhere in computer space? No one will find them or bother looking for them. While this may be true for the most part, when one person is engaging in an extramarital affair, the other spouse is suspicious and a divorce is pending, it is likely that someone is going to be searching for evidence. And that's where e-mail comes into play.

E-mail and high-tech materials are increasingly becoming a viable and invaluable source of evidence to prove adultery in a divorce. Most people understand that phone records are easily retrievable, so deceptive spouses often turn to e-mail and instant messaging as a means to communicate with their paramours, assuming that such information can't, or won't, be retrieved. However, while e-mail and instant messages may be more difficult to recover, they are certainly not "lost" for purposes of discovery in a pending divorce case and can be used as proof of adultery, taking the "he-said/she-said" problem out of the equation.

E-mail can be stored in such locations as computer hard drives, both network and individual, Palm Pilots, and network servers. Every individual computer containing a hard drive may store e-mail data for long periods of time and networks maintained by businesses may store the data even longer. It is important to remember that even when we hit the "delete" button, our e-mail messages can be, and generally are, stored and subject to recovery at a later time.

The means for the recovery of deleted e-mail is becoming more advanced and, therefore, the likelihood of retrieving such evidence is greater than most people realize. There are companies that specialize in the recovery of data that can be utilized in a pending divorce action. They can retrieve e-mail messages sent by one party in an effort to prove adultery or other activities that might be harmful to their children or spouse. Programs exist to store messages and log use of chat rooms, online logins, instant messages and other such means of communications.

The Federal Rules of Civil Procedure allow the discovery of electronic information. Certainly, the information must be relevant to be revealed, which is a question addressed by the court on a case-bycase basis. As a general rule though, the electronic correspondence of one spouse that reveals adultery or some other questionable activity will likely be ruled relevant in any divorce action. Therefore, a party to a divorce action would be wise to raise the issue of retrieving electronic data to his or her attorney early in the litigation.

While most people think of electronic data retrieval being used primarily as a means of catching someone in an act of deception, there are other applications. Parties in a divorce case should be careful about how they use e-mail, text messaging, or instant messaging. If one party is asking for electronic information, it is likely that the tables will be turned and a request for their e-mails also will be made. Time and time again, lawyers are amazed by clients who discuss their legal strategies with friends or family members via e-mail, which then has to be turned over to the other side. In a situation such as that, valuable information, which should remain privileged, is revealed and can prove harmful to the case.

With technology advancing at an extraordinary pace, e-mail and other electronic data has become yet another avenue in a divorce case to prove a spouse's misdeeds. The recovery of email that has been "deleted" is fast becoming less difficult and a more viable option for spouses needing evidence to prove adultery, drug use, fraud or other common accusations found in divorce cases. But even if a party is not the wrongdoer, careful consideration should be given concerning what information is being transmitted before pressing the "send" button on a computer and possibly creating new evidence. Simply put, anything you type may well be used against you.

Mary Johanna McCurley is a name partner with McCurley, Orsinger, McCurley & Nelson, which specializes in Family Law. She is the vice President of the American Academy of Matrimonial Lawyers and Chairperson of the Family Law Section for the State Bar of Texas. Laura M. Hilliard is an associate at McCurley, Orsinger, McCurley & Nelson (www.momn.com.)