TN Wife’s Use of Spyware on Husband’s Computer Leads to $10K Damages

Tennessee law case summary on recordings in divorce and family law.

James Roy Klumb v. Crystal Goan – Tennessee Divorce wiretapping with spyware

The Plaintiff brought this civil action in the federal district court for the Eastern District of Tennessee against his ex-wife.  The plaintiff alleged that his ex-wife had violated federal and state wiretap laws by installing spyware on his computer to intercept his incoming e-mail.  A trial was held before Magistrate Judge Carter, who concluded that the ex-wife had violated the statutes, and held that the ex-husband was entitled to statutory damages of $10,000, punitive damages of an additional $10,000, and attorney fees.

Prior to their marriage, the wife had purchased an “eBlaster” spyware program.  This program was able to log keystrokes, keep track of websites visited, and forward incoming e-mails and instant messages to a third-party e-mail address.  After the couple was married, the wife surreptitiously installed the program on her husband’s computer.  About a year later, when he obtained another computer, she installed the software on this computer.

The relationship quickly soured, and both parties were involved in extramarital affairs.  The wife had divorce papers served on the husband, and the husband also went to rehabilitation for his drinking problems.  While plaintiff was in rehabilitation, the defendant was seen in plaintiff’s office.  The following morning, one of the office printers had printed one of plaintiff’s private e-mails.  These printouts made reference to “eBlaster”.  When confronted, the wife denied any knowledge of the software.

A forensic computer expert was retained by plaintiff’s employer, and the eBlaster software was located.  The evidence also showed that the defendant had  modified some of the e-mails with fabricated evidence of infidelity.

The court first considered the statute of limitations, which was two years under each statute.  Even though the wiretapping had taken place more than two years prior, the court held that the case was not barred, since the wiretapping was not discovered until later.  The court then held that the defendant’s use of the eBlaster software constituted “intercepting” plaintiff’s communications as the terms are used in both the federal and state wiretap laws.

The defendant next argued that the plaintiff had consented to the use of the spyware.  According to her argument, he had agreed that spyware was necessary to keep his son from looking at pornography, and that it was necessary on his office computers to prevent the loss of confidential business information.  However, the court concluded that there was no credible evidence of this alleged consent.  In particular, the court noted that the defendant’s denial of any knowledge of the software negated any possibility of consent.

The defendant next argued that because the state divorce case had been settled, that constituted a settlement of the wiretap cause of action.  However, the court found it significant that the state court settlement made no reference to the wiretap claims.

The federal law provides for damages of $10,000.  An earlier case had ruled that a claimant may be awarded more than $10,000 if the violation took place on more than 100 separate days.  The court ruled that there was no evidence that the violation took place for more than that number of days, and that the plaintiff was entitled to damages of $10,000 only.  However, the court declined to consider awarding less.

On the issue of punitive damages, the court concluded that the defendant engaged in “egregious conduct” because it was “extreme and outrageous” because it was a concerted scheme to gain advantage over plaintiff in the divorce case.  Therefore, the court awarded an additional $10,000 in punitive damages.

Finally, the court found that an award of attorney fees was appropriate, and asked the plaintiff to submit a statement of those fees.  The district court subsequently denied the defendant’s request for a new trial.

No. 2:09–cv–115, 884 F.Supp.2d 644 (E.D. Tenn. July 19, 2012).

See original opinion for exact language.  Legal citations omitted.

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