NY Husband Must Pay Wife’s Attorney Fees After Secretly Keeping Her iPad and Text Messages

Tennessee case summary on electronic evidence in divorce.

Elizabeth S. Strauss v. Daniel A. Strauss

The husband and wife in this New York County, New York, case were in the midst of a divorce when the husband somehow came into possession of the wife’s iPad, which contained the wife’s private text messages.  He falsely told the wife that he didn’t have the device and that it was lost.  However, he quietly provided the text messages to his attorney.  The attorney failed to notify the other attorney that the husband had the iPad and messages.  Instead, he sat on it for about two years.  At that time, the husband’s attorney disclosed that they would be using the text messages at trial.

The wife made a motion for sanctions, and in 2018, the trial court, Justice Deborah A. Kaplan, ordered the husband and his attorney to pay the wife $180,000 in costs and attorney’s fees.  The husband then appealed to the New York Appellate Division.

On appeal, the husband did not dispute the underlying facts.  In fact, he did not argue that he was legally permitted to take possession of the iPad and the wife’s personal data.  He did argue that he “needed to preserve the information” for trial, but the appeals court quickly rejected this argument by noting that the husband had other evidence that would have supported his position.  Instead, the appeals court found that the husband had no reason for keeping the text messages, other than to harass and embarrass the wife.  The appeals court also noted that this conduct implicated the criminal laws of New York.

The husband did fare better, however, when it came to the amount of the sanctions.  He argued that Justice Kaplan had failed to hold an adequate hearing before setting the amount of the sanctions.  The appeals court noted that a full evidentiary hearing was not required, but that the husband was entitled to a reasonable opportunity to be heard, which would depend on the circumstances of the case.  In this case, the wife’s motion for sanctions did not include any affirmation explaining the invoices, and the lower court failed to adequately explain the amount of the award.

For this reason, the Appellate Division remanded the case for the limited purpose of holding a hearing on the amount of attorney’s fees..

No. 304189/13 9060N 9059, 2019 NY Slip Op 02993 (N.Y.A.D. Apr. 23, 2019).

See original opinion for exact language.  Legal citations omitted.