He said, she said: surreptitiously obtained email may be used in divorce action

Given the ubiquitous use of email in today’s society, the possibility that an email transmitted to an opposing or third party could constitute discoverable evidence is not surprising. However, a recent Brooklyn Supreme Court decision may expand the use of email in litigation to include those not transmitted to a party, but rather clandestinely obtained from a party’s email account.

In Gurevich v. Gurevich, a divorce litigation, the court held that a wife could admit into evidence emails she secretly accessed from her estranged husband’s email account as evidence that her husband’s income, as reported, was inaccurate. 2009 WL 1233587, _ N.Y.S. 2d _, (Sup. Ct. Kings Co., May 5, 2009) (Sunshine, J.). The husband had given his wife the passwords to his email accounts during their marriage and did not change them until two years after the parties’ physical separation.

The court reasoned that the woman’s accessing of her husband’s email account did not constitute “eavesdropping” as defined in section 250.05 of the New York Penal Law, and therefore did not render the emails inadmissible. Id. at *4. The decision turned on interpretations of “intercepting or accessing of an electronic communication” and “electronic communication,” as used in Penal Law section 250.00. The court found that “the purpose of Penal Law Section 250.00 is to prohibit individuals from intercepting communication going from one person to another, and in this case an email from one person to another. In the case at bar, however, the email was not ‘in transit,’ but stored in the email account.” Id. at *3-4. (internal quotations omitted).

Thus, Gurevich sets a new precedent in New York, allowing for the admission into evidence of stored email, even if those emails were surreptitiously accessed from email accounts, as they may not be protected by eavesdropping and similar statutes. The lesson: be sure to guard your passwords from others — even spouses — when you do not want your private accounts accessed, or else you could unwittingly have your email used against you.