Wiretapping & Data Interception in Civil and Family Law Cases

Wiretapping & Data Interception in Civil and Family Law Cases

Dallas Bar Association Headnotes, October 2015

by Hon. Emily Miskel

Civil and family law attorneys are increasingly confronted with situations where a client’s information has been improperly accessed or where a client has obtained information improperly. The laws relating to interception of communications and electronic data are a confusing web of state and federal statutes, which can include harsh penalties and damages for clients. These laws can also create personal criminal and financial liability for lawyers.

Continue reading Wiretapping & Data Interception in Civil and Family Law Cases

Does ‘Sperm Donor’ Mean ‘Dad’?

The Jason-Patric-assisted-reproduction story has been in the news, and earlier this week, the New York Times did a lengthy story on it.

The actor Jason Patric dated Danielle Schreiber on and off for many years. During a time when they were “off” but friendly, they agreed to use his sperm so that she could have a child, Gus. After Gus was born, they reconciled, and then eventually broke up when Gus was about two years old. Jason sued for custody, while Danielle claimed he was merely a sperm donor with no parental rights.

In a similar Texas case, In re Sullivan, an unmarried man and woman agreed to conceive a child through assisted reproduction, and signed a “co-parenting agreement.”  When the man later tried to claim parental rights, the woman moved to dismiss his case because a donor is not a parent under Texas law.  Continue reading Does ‘Sperm Donor’ Mean ‘Dad’?

Weekly Links

New TX Supreme Court Opinion on Grandparent Access
http://www.supreme.courts.state.tx.us/historical/2010/nov/091072.htm
The supreme court granted mandamus on a temporary order that awarded grandparent possession and access.  The court held that “understandable sadness resulting from losing a family member and missing their grandparents” is not enough to meet the “hefty statutory burden” that denial of access would “significantly impair the child’s physical health or emotional well-being.”  The opinion also addresses the trial court’s appointing an expert to serve both as guardian ad litem to the children and as an expert psychologist to examine the parties and children to make recommendations to the court.

Two People Cooperate Intuitively; Larger Groups Need to Make a Conscious Effort to Communicate
http://www2.le.ac.uk/offices/press/press-releases/2010/october/research-shows-that-two-people-can-learn-to-cooperate-intuitively-but-larger-groups-need-to-communicate
Two people can learn to cooperate with each other intuitively – without communication or any conscious intention to cooperate. But this process breaks down in groups of three or more.  Larger groups need explicit communication and planning. Mechanisms need to be put in place to facilitate it. Intuitive cooperation is really a case of two’s company, but three’s a crowd.

“Well” is the Poor Man’s Polygraph
http://www.psychologytoday.com/blog/let-their-words-do-the-talking/201011/poor-mans-polygraph-part-1
When you ask someone a direct Yes or No question and they begin their answer with the word “Well,” there is a high probability of deception. Beginning an answer to a direct Yes or No question with the word “Well” indicates that the person answering the question is about to give you an answer that they know you are not expecting.

Concern for Wisconsin’s Domestic Partnership Registry
http://www.thenorthwestern.com/article/20101108/OSH0101/11080357/Gay-rights-advocates-fear-lawmakers-will-repeal-Wisconsin-s-domestic-partnership-registry
I’m posting this not so much for the story itself, but because Wisconsin has an interesting family law history.  They were a common law property state until 1984, when they decided by statute to become a community property state.  Most of the other community property states are western states where Spanish law was more of an influence.  Interestingly, Alaska is an opt-in community property state:  property is separate property unless both parties agree to make it community property through a community property agreement or a community property trust.
In other civil union news:
http://www.abajournal.com/news/article/we_want_what_they_have_says_straight_couple_suing_for_civil_union_rather/
A straight couple in the UK is suing for the right to have a civil union instead of a marriage.

Huffington Post – Divorce Section
http://www.huffingtonpost.com/divorce/
This blog has a whole section devoted to divorce stories, example:
The Case for the Starter Marriage
http://www.huffingtonpost.com/2010/11/09/starter-marriage_n_777375.html

What Alcohol Actually Does to Your Brain and Body
http://lifehacker.com/5684996/what-alcohol-actually-does-to-your-brain-and-body
Some science on how alcohol affects humans.

Supreme Court to Address Old Law Discriminating Against Fathers in Citizenship
http://www.slate.com/id/2274095/

Rules for Writing Useful Emails
http://lifehacker.com/5687586/email-writing-values-keep-it-relevant

Weekly Links

More Science on Procrastination
http://youarenotsosmart.com/2010/10/27/procrastination/
Understanding Procrastination Through Netflix, Cheeseburgers, and Present Bias

How to Beat a Polygraph
http://lifehacker.com/5675884/how-to-beat-a-polygraph-test
Lie-detector tests are not admissible in court, and here are some reasons why.

When Breaking Up Means Living With Your Ex
http://jezebel.com/5675584/when-breaking-up-means-living-with-your-ex
Apparently, in California, courts cannot force one spouse to leave the residence. 

Burnout and How to Deal With It
http://lifehacker.com/5674007/burnout-and-how-to-deal-with-it
I know we all had busy Octobers, and now the holidays are coming up.  Make sure to stay well, mentally and physically.

Regular Exercise Halves Your Chance of Catching a Cold 
http://lifehacker.com/5679696/regular-exercise-halves-your-chance-of-catching-a-cold
Oh man, add something else to my to-do list!

Invasion of Privacy
http://www.attackvector.org/invasion-of-privacy/
This guy took a spam email and tracked down the sender’s social security number, phone number, a picture of his house, the school where his wife teaches and more.  Be aware of all the information that can be found about people these days!

Breakup Data
http://mathiasmikkelsen.com/2010/10/amazing-facts-about-facebook-and-breakups/
Someone scanned over 10,000 facebook status-updates and graphed when people broke up.  I think it somewhat syncs up with our peak busy times.

Our Brain’s Negative Bias:  Why our brains are more highly attuned to negative news
http://www.psychologytoday.com/articles/200306/our-brains-negative-bias
“a very specific ratio exists between the amount of positivity and negativity required to make married life satisfying to both partners. That magic ratio is five to one. As long as there was five times as much positive feeling and interaction between husband and wife as there was negative, researchers found, the marriage was likely to be stable over time. In contrast, those couples who were heading for divorce were doing far too little on the positive side to compensate for the growing negativity between them.”

 7 Principles for Dealing with Haters
http://www.fourhourworkweek.com/blog/2010/05/18/tim-ferriss-scam-practical-tactics-for-dealing-with-haters/

Russia Goes After 1 Guy, Worldwide Spam Drops By 1/5
http://consumerist.com/2010/10/russia-goes-after-1-guy-worldwide-spam-drops-by-15.html
After Russian authorities started an investigation into alleged spammaster Igor A. Gusev, worldwide spam has dropped by a sustained one-fifth.

Weekly Links

How to Build Your Workday Around Focus: Tips from the Trenches
http://lifehacker.com/5670193/how-to-build-your-workday-around-focus-tips-from-the-trenches
Great practical tips.

Hurry Up And Fund That Trust
http://online.wsj.com/article/SB10001424052748704518104575546492738229132.html
The estate tax has lapsed for 2010 but could come back with a vengeance next year. Now Congress is trying to put limits on a popular trust families use to avoid the tax.

The Age of Extra
http://www.nytimes.com/2010/10/24/opinion/24friedman.html?src=me&ref=general
“But just doing your job in an average way — in this integrated and automated global economy — will lead to below-average wages. Sadly, average is over. We’re in the age of ‘extra,’ and everyone has to figure out what extra they can add to their work to justify being paid more than a computer, a Chinese worker or a day laborer. ‘People will always need haircuts and health care,’ says Katz, ‘and you can do that with low-wage labor or with people who acquire a lot of skills and pride and bring their imagination to do creative and customized things.’ “  Looks like our firm’s got the right approach—creative and customized.

Top Ten Secrets of Effective Liars
http://www.psychologytoday.com/blog/extreme-fear/201005/top-10-secrets-effective-liars

How to Manipulate People
http://lifehacker.com/5672291/how-to-manipulate-people

Divorce Lawyer Sues Opposing Party for Saying Mean Things on Facebook
http://abovethelaw.com/2010/10/nevada-lawyer-sues-over-mean-facebook-comments/

Court Compels Production of Social Networking Login Information
http://ohioemploymentlaw.blogspot.com/2010/10/court-compels-production-of-social.html
The court dispelled any notion that information one posts on Facebook is private and found that the relevancy of social networking information outweighed the potential of harm from the disclosure of that information.

Federal case on spoliation sanctions for deleted emails and recordings
http://bowtielaw.wordpress.com/2010/10/25/sanctions-for-spoliation-are-not-made-on-hunches/

Does the Constitution Create the Perfect Crime Scene?
http://us1.campaign-archive.com/?u=2889002ad89d45ca21f50ba46&id=daccc09b14

How People Can Gain Access to Private Facebook Profiles
http://webcache.googleusercontent.com/search?q=cache:F8gHOhVsbxkJ:www.makeuseof.com/tag/how-to-view-private-facebook-profiles/
It is UNETHICAL for us to use this method, so I am not recommending that any of us do this.  I just want people to know that this is one way people are gaining access to private profiles.

Weekly Links

How Marriage Survives
http://www.nytimes.com/2010/10/13/opinion/13wolfers.html?scp=1&sq=marriage&st=cse
Marriage and divorce rates have remained remarkably immune to the ups and downs of the business cycle. Unfortunately, the marriage statistics are easy to misread.
The economist backs up the story with numbers:
http://freakonomics.blogs.nytimes.com/2010/10/13/what-is-going-on-with-marriage/?scp=2&sq=marriage&st=cse

17 Essential Skills You Didn’t Learn in College
http://www.thesimpledollar.com/2010/10/14/10-more-essential-skills-you-didnt-learn-in-college/
http://www.wired.com/magazine/2010/09/ff_wiredu/all/1

Attorney Disbarred for Charging $3,500 an Hour (and outrageous behavior)
http://www.law.com/jsp/article.jsp?id=1202473305985&Kansas_Attorney_Disbarred_Over_High_Fee_Disrespect_to_Judge_and_Court_Staff
This guy is NOT the platinum standard.

Four Reasons Why You Choke Under Pressure (and How to Avoid Them)
http://lifehacker.com/5669385/four-reasons-why-you-choke-under-pressure-and-how-to-avoid-them
In her book Choke, author Sian Beilock examines the science behind why we choke under pressure. Here, Beilock explains a few of those reasons, and offers a few solutions.

Weekly Links

Later:  What does procrastination tell us about ourselves?http://www.newyorker.com/arts/critics/books/2010/10/11/101011crbo_books_surowiecki
A great article about why we procrastinate and how to change.  One way to think about procrastination is that we are not unified selves but different beings, jostling, contending, and bargaining for control. The person who makes plans and the person who fails to carry them out are not really the same person: they’re different parts of what the game theorist Thomas Schelling called “the divided self.” The various parts of the self are all present at once, constantly competing and bargaining with one another—one that wants to work, one that wants to watch television, and so on. The key is that although the television-watching self is interested only in watching TV, it’s interested in watching TV not just now but also in the future. This means that it can be bargained with: working now will let you watch more television down the road.

Corner Office:  Does Your Team Have the Four Essential Types?
http://www.nytimes.com/2010/10/03/business/03corner.html

In any great leadership team, you find at least four personalities, and you never find all four of those personalities in a single person.

Federal Judge Scandal
http://www.11alive.com/news/local/story.aspx?storyid=156991&catid=40
Federal judge arrested for buying drugs and sex from an exotic dancer who turned out to be (uh oh!) a confidential informant.  I like this part – “Camp’s attorney said his client has not made a decision on resigning from his seat on the bench” – oh, to be appointed for life!

Valuing Mel Gibson’s Goodwill in Divorce
http://abovethelaw.com/2010/10/fame-brief-mel-gibson%e2%80%99s-celebrity-goodwill-hunted/
The settlement is on track to be the largest divorce payout in Hollywood history, with Robyn to get at least half of the almost $1 billion Mel earned during their 28-year marriage.  But there are still outstanding issues, including something called “good will.”  In the past Mel had a lot of good will that translated into being able to make movies that people would pay to see.  But after Mel’s 2006 and 2010 rants, the good will has evaporated if not disappeared.  As a result, the asset has been greatly devalued.  One of the issues is whether Mel should have to pay Robyn for squandering his good will.  However, while other states recognize the concept of celebrity or personal goodwill, apparently California does not, which is odd. Goodwill in CA divorces is limited to professional practices or businesses. The only way Robyn can argue that Mel’s bigoted diatribes, unhinged voicemails and domestic violence negatively impacted Mel’s goodwill is if she’s referring to the goodwill of his production company.

Schedule Your Work for Increased Productivity
http://weblog.muledesign.com/2010/10/the_chokehold_of_calendars.php
Most people don’t schedule their work. They schedule the interruptions that prevent their work from happening. The real work happens in the cracks between meetings, or worse, after business hours.

If You Want to Catch a Liar, Make Him Draw
http://www.psychologytoday.com/blog/neuronarrative/201010/if-you-want-catch-liar-make-him-draw
Fabricating a story is easy when you only need to tell a few, select details. When you have to draw it out on paper, however, it becomes easier to tell the liars from the truth-tellers.

Be Careful Bragging About Your Sex Tape Money When You Owe Child Support
http://www.radaronline.com/exclusives/2010/10/exclusive-tiger-woods-alleged-mistress-devon-james-center-family-feud-over-kids
Devon James has been bragging about making $350,000 selling the sex tape she made with Tiger Woods, and now her ex-husband is asking her to pay the $12,000 she owes him in child support.

What’s Wrong With Your Law Firm Bio?
http://abovethelaw.com/2010/10/whats-wrong-with-your-law-firm-bio/

Weekly Links

http://texas-qdro-lawyer.com/
Former family associate judge, former board certified family law specialist, now exclusively does QDROs in divorce cases.  $400 flat fee, written approval guaranteed.

 For the Lords of Divorce, a Breakup
http://www.nytimes.com/2010/08/29/nyregion/29divorce.html
Sheresky Aronson Mayefsky & Sloan, with 16 lawyers devoted entirely to matrimonial cases, was widely considered one of the top firms of its kind in New York. Despite their experience negotiating other people’s splits, the demise of this legendary Lexington Avenue firm promises all the passion and particulars of a messy divorce. A former partner has filed a $26 million lawsuit alleging breach of contract and fraud, raising the issue of how firms should handle a senior partner who is transitioning toward retirement.  There are no children to fight over, or property to divide. Instead, the lawsuit is about the details of a verbal agreement to pay the retiring partner $100,000 a year.

 Breaking Up Without Breaking the Bank
http://online.wsj.com/article/SB10001424052748704216804575423321156719004.html
Spotlight on a Frisco, Texas, couple and how they’ve used collaborative law.

 Is ‘The Jersey Shore’ a criminal enterprise?
http://www.abajournal.com/weekly/article/lawyer_contends_jersey_shore_is_a_criminal_enterprise

Supreme Court split on the use of Apostrophes
http://www.abajournal.com/weekly/article/the_supreme_court_is_split_on_apostrophes
I know we’ve had this debate at Wednesday lunch – if a name or word ends in “s” do you still use ’s to indicate the possessive?  Examples:  Congress’s vs Congress’, Jones’s vs Jones’.  Turns out the US Supreme Court is split as well!  (I always add ’s)

Weekly Links

Good Financial Calculators:
http://www.pine-grove.com/online-calculators/index.htm – web-based
http://www.vertex42.com/ – Excel

 5 Tips for People Who Receive More than 1,000 Emails a Day
http://kevinrose.com/blogg/2010/8/17/email-sucks-5-time-saving-tips.html

 Chinese Traffic Jam Stretches 60 Miles, Ten Days
http://blogs.wsj.com/drivers-seat/2010/08/24/chinese-traffic-jam-stretches-60-miles-ten-days/
Not family law related, but something to think about next time you’re getting road rage in Dallas traffic.

Wondering how McGuireWoods Landed the Tiger Woods Divorce Case?
http://abovethelaw.com/2010/08/how-did-mcguirewoods-land-the-tiger-woods-divorce-case-with-the-help-of-a-hottie/

Turns out Elin’s twin sister is an M&A attorney at the firm’s London office

New iPad App Helps Lawyers Select Juries
http://www.abajournal.com/news/article/avatars_represent_jurors_in_new_ipad_app_for_litigators

NY Judge Allows Mom to Relocate, Requires Skype Visitation
http://www.abajournal.com/news/article/judge_orders_skype_visits_as_condition_of_moms_move

Stalker’s Paradise, Coming to a Smartphone Near You
http://alttransport.com/2010/08/stalkers-paradise-coming-to-a-smartphone-near-you/

Social Media Lessons from a Russian Sniper
http://abovethelaw.com/2010/08/social-media-lessons-from-a-russian-sniper/
How to efficiently use social media to reach high-value targets

Real Housewife of New Jersey’s Post-Bankruptcy $60k Shopping Spree – Legal?
http://abovethelaw.com/2010/08/fame-brief-is-the-giudices-60k-post-bankruptcy-spree-legal/

CellSnoop
http://www.thecellsnoop.com/?gclid=CMGvs6L11qMCFdVb2godIQVpwQ
Technology that allows you to (probably illegally) spy on any Cell Phone, Laptop or Bluetooth enabled device

Weekly Links

Breaking Up Is Hard to Do
http://online.wsj.com/article/SB10001424052748704901104575423341295531582.html?mod=WSJ_hp_editorsPicks_2

A great history of divorce in America since 1787.  False confessions, graphic testimony, framed spouses and ‘unknown blondes’: a history of the difficulty in getting divorced, and how it could now change.  As New York finally ushers in no-fault divorces, the WSJ looks back on the history of the need for fault.

 Captured: America in Color from 1939-1943
http://blogs.denverpost.com/captured/2010/07/26/captured-america-in-color-from-1939-1943/
Not related to family law, but I think it’s amazing how the color photos make them seem more like us. “These images, by photographers of the Farm Security Administration/Office of War Information, are some of the only color photographs taken of the effects of the Depression on America’s rural and small town populations.”

Apple security breach gives complete access to iPhone
http://www.msnbc.msn.com/id/38540754/ns/technology_and_science-wireless/

A Labor Market Punishing to Mothers
http://www.nytimes.com/2010/08/04/business/economy/04leonhardt.html?_r=1
“The last three men nominated to the Supreme Court have all been married and, among them, have seven children. The last three women — Elena Kagan, Sonia Sotomayor and Harriet Miers (who withdrew) — have all been single and without children.” “Our economy exacts a terribly steep price for any time away from work — in both pay and promotions. People often cannot just pick up where they have left off. Entire career paths are closed off. The hit to earnings is permanent.”

Bookmark Index Cards – Useful Office Supplies for Attorneys
http://unclutterer.com/2010/08/11/new-office-products-antimicrobial-file-folders-and-bookmark-index-cards/

New York City tops Wealth Index
http://abovethelaw.com/2010/08/new-yorks-millionaire-population-rebounds/
With no-fault divorce on the horizon for New York, and more high net worth individuals than Los Angeles, Chicago and Washington, D.C. combined, maybe it’s time for us to open a New York City office! 

Job-Hunting Paralegal Discovers Craigslist Ruse Involving Fake Law Firm
http://www.abajournal.com/weekly/article/job-hunting_paralegal_discovers_craigslist_ruse_involving_fake_law_firm