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.

Phone Recordings

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.

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