As technology rapidly advances and becomes more sophisticated, attorneys, litigants and the courts must grapple with the use of modern surveillance in the context of litigation in family matters. Surveillance can be useful in some situations, and litigants often resort to surveillance of their spouse to gather what they perceive to be valuable evidence. That evidence, whether it be video footage, recorded telephone calls, GPS tracking, digital copies of hard drives or other forms of surveillance, may be used at trial or simply to gain leverage in settlement negotiations. Nevertheless, this type of activity does not come without risk. Without careful guidance and an understanding of the legal implications, surveillance can place attorneys in jeopardy of legal or ethical violations, and could also undermine the client’s position (e.g., something of limited evidential value could backfire on the client). This article explores three surveillance techniques and analyzes the risks and rewards of each.
It is easy to record a telephone call, whether it be through an application on a cell phone or an easily disguised device. Since recording devices are readily available, a client may resort to this option to gain evidence for litigation without involving a professional. However, a client could easily violate a law prohibiting the recording.
In New Jersey, the ability to record another individual is governed by the New Jersey Wiretapping and Electronic Surveillance Control Act (N.J.S.A. 2A:156A-1 et. seq.). The act makes it a crime for an individual to record another individual. N.J.S.A. 2A:156A-3. However, the act creates an exception when one party to the communication consents. N.J.S.A. 2A:156A-4(d). In a family action or domestic violence case, lawful recordings of conversations between parties can result in valuable admissions. A recorded conversation between a client and their spouse could create useful evidence. On the other hand, a recording of communication between the client’s spouse and their paramour could result in barred evidence and possible criminal penalties.
Clients frequently run afoul of the Wiretapping Act and engage in audio recordings to which they are not a party. For example, a parent may begin recording conversations between the other parent and the children to garner information or catch the parent behaving badly. These recordings are only permissible if they meet the “vicarious consent” exception created under New Jersey case law. See Cacciarelli v. Boniface, 325 N.J. Super. 133 (Ch. Div. 1999). In Cacciarelli, the trial court first expanded the act to include “vicarious consent” in civil matters which had previously only been recognized in the criminal context. Id. at 137-138.
In D’Onofrio v. D’Onofrio, 344 N.J. Super. 147 (App. Div. 2001), the court provided the standard for utilizing vicarious consent in civil matters—and specifically in the situation where a parent records a telephone call between the child and the other parent. The D’Onofrio opinion recognized that vicarious consent is not “a sweeping exemption, and blanket allegations of ‘best interests’ simply will not suffice.” Id. at 156. Rather, to properly obtain vicarious consent a party must show “a good faith basis that it is objectively reasonable for believing that consent on behalf of the minor to taping is necessary and in the best interest of the child.” Id. The court clarified this standard stating that the “situation presented by the other parent … must make clear that the doctrine of vicarious consent is necessary to protect the child from harm.” Id.
The facts of D’Onofrio were specific and may not absolve a client of liability if they push the limits of the Wiretapping Act by recording their children. In D’Onofrio, the parties were actively involved in a custody proceeding; the residential parent created the recordings; the recorded parent had significant restrictions on parenting time due to “depression, suicidal tendencies, and hurtful behavior”; and the recordings began inadvertently. Id. at 156-157. A court may not look favorably on a client recording their children if the facts do not align with those in D’Onofrio. Useful evidence could be barred and quickly turn into a criminal issue if not prepared properly.
Video surveillance can be tremendously helpful in certain actions. For example, when a payor suspects that their ex-spouse is cohabitating, surveillance may be necessary to confirm the cohabitation and support an application to modify or terminate alimony. N.J.S.A. 2A:34-23(n) lists various factors for a court to consider when assessing if cohabitation is occurring. This includes: “[r]ecognition of the relationship in the couple’s social and family circle” and “[l]iving together, the frequency of contact ….” N.J.S.A. 2A:34-23(n)(3) and (4). Frequently, the only way to prove these factors is through old-fashioned detective work including video surveillance of the former spouse and the alleged new significant other.
In one of the seminal cases on cohabitation, Konzelman v. Konzelman, 158 N.J. 185 (1999), the husband hired a private investigator to surveil his ex-wife every day for 127 days to determine whether she was cohabitating. The trial court ultimately determined that the ex-wife was cohabitating (presumably in part based on the surveillance), and the decision was affirmed by the Supreme Court. Cases such as Konzelman emphasize the importance of video surveillance when a court is deciding this fact-sensitive issue.
However, clients should proceed with caution if they decide to engage in video surveillance without the assistance of a professional. In the case of H.E.S. v. J.C.S., 175 N.J. 309 (2003), after the parties began sleeping in separate bedrooms, the husband installed a recording device in the wife’s room. The wife was able to rely on the recordings to support her request for a final restraining order. The husband unsuccessfully argued that the recordings did not constitute stalking because he did not prepare them in a threatening manner, and the recordings would not have caused a reasonable person to fear bodily injury. The New Jersey Supreme Court disagreed and found that the recordings could constitute stalking. The court found that the husband acted purposefully, his behavior constituted a “course of conduct” and, given the totality of the circumstances, it was reasonable for the wife to fear bodily injury. Id. at 329-330. Although the H.E.S. decision included facts which may distinguish the case from other video surveillance matters, clients must proceed with care if they want to privately engage in surveillance like the husband in H.E.S.
The technology behind Global Positioning Systems (GPS) advanced exponentially in recent years, making it accessible to expert investigators and lay people alike. Devices have become cheap, small, sophisticated and difficult to detect.
In Villanova v. Innovative Investigations, 420 N.J. Super. 353 (App. Div. 2011), the court confirmed that placing a GPS unit on a vehicle did not amount to the tort of invasion of privacy. The husband sued his wife’s private investigator after a GPS device was placed on his vehicle without his knowledge. The wife retained the private investigator to try to determine if her husband was having an affair. The appellate court ruled that the husband had no expectation of privacy on a public road, so the fact that the GPS tracked his location while he was driving did not constitute an invasion of privacy. Id. at 364. The Villanova case provides some parameters for GPS tracking, but clients should remember that a professional investigator was consulted prior to the installation of the tracking device. A professional investigator and, preferably, an attorney, should be able to advise the client about restrictions on tracking and when it is permitted.
The statute defining stalking was specifically expanded to encompass the new GPS technology. In 2009 when N.J.S.A. 2C:12-10 was amended, the Senate Judiciary Committee reported that the term “course of conduct” should be expanded to ensure that it would include “stalking by means of new technology, such as situations where the stalker tracks the victim through the use of a global positioning system attached to the victim’s car.” Id. The expanded definition of stalking could have serious ramifications on a client who decides to track a spouse without guidance from a professional. Moreover, if a restraining order is in place, GPS tracking could violate the order. Counsel may directly employ an investigator on behalf of their client to protect the GPS results with the attorney work product privilege but, if done at the client’s direction, this still might not protect the client from a violation of the restraining order.
Although this article only covers three forms of surveillance, the technology is expanding and could include copying hard drives, invasion into private servers, accessing internet accounts and password protected devices, and other electronic means to obtain evidence. Before any form of surveillance is used, careful consideration should be given as to whether the evidence obtained will persuade a judge and if it is worth the risk and expense. Attorneys must advise clients on the balance of the risks versus the rewards with regard to the technology and determine the best way to proceed given the specific facts of the case.
Carl J. Soranno is a member of Brach Eichler, in Roseland, and chair of the firm’s Family Law practice. Mia V. Stollen is an associate of the firm and focuses her practice on family law and litigation.