Justice Jeffrey D. Lebowitz

QUEENS COUNTY
Supreme Court

In this Order to Show Cause presently before the court, defendant husband seeks an order of suppression for all information obtained by the plaintiff wife from the couple's home computer, and all information derived therefrom, and for an order directing the return of all clones or copies made of the hard drive. Defendant also seeks an order granting an anonymous caption.

Defendant husband herein seeks suppression of all information obtained by the plaintiff wife from the parties' Dell laptop computer. There were originally two computers in the home, the wife used the one in the bedroom and the husband used the laptop computer. It is uncontested that prior to the commencement of this action, the wife had the password for and access to the laptop computer used by defendant. Although the husband concedes that the wife had knowledge of the password and access to the computer, he claims he had a separate password for the e-mail account he accessed through the computer, for which he claims an expectation of privacy. Husband also acknowledged that the children used the computer to view Thomas the Tank Engine movies on several occasions, but claims that since they never used the computer unattended (ages 2 and 5 years old) the computer was not considered by him to be a "family" computer.

There are several questions before the court on this Order to Show Cause. The Court will first address whether the wife was entitled to access the Dell laptop computer and copy the hard drive. Defendant claims that the computer was not a family computer, but rather one that was occasionally used by his wife and children. He further claims that since his e-mail account was password protected, although he knew his wife had the main password to access the computer, his expectation of privacy was such that this should not be considered a "family" computer. Defendant's reliance on the case of Byrne v. Byrne, 168 Misc.2d 321 (Kings Cty. 1996) is misplaced, as his own representation as to who used the computer belies his arguments. In Byrne, the defendant, under similar circumstances, argued that the computer was not a family computer and thus his wife was not entitled to access the hard drive. The court held that since defendant permitted his children to use the computer for their homework, it was a "family" computer. Id. at 322. The court held that the real issue was not who possessed the computer, but rather, who had access to the computer's memory, analogizing the computer memory to a "file cabinet:. Id. Here, it is clear to this court that the laptop computer was used as a "family" computer and that plaintiff wife was entitled to access its contents. Further, the husband's belief that his wife had a "low level of computer savvy", does not contravene her right to have a computer expert assist her in copying the hard drive, as she was well within her right to access the hard drive on her own. An examination of the hard drive revealed extensive pornography, pornographic video made by the defendant in the home, and evidence of extramarital affairs.

Another consideration before this court is whether the wife violated any provisions of the Penal Law governing wiretapping or interference with transmission of information when she accessed the computer hard drive. This Court holds that the provisions cited by defendant do not govern the circumstances presented before this court. As the court addressed in Moore v. Moore, (N.Y.L.J. August 14, 2008, p.26, col.1), Penal Law §250.05 - Eavesdropping does not apply since the communication at issue occurred on prior occasions and the wife's subsequent access to that material on the hard drive "was not the result of an intercepted communication and does not constitute a violation of Penal Law §250.05." Id. Further, as the court addressed in Moore, Penal Law §156.05 - Unauthorized use of a computer and Penal Law §156.35 - Criminal possession of computer related material do not apply to the facts of this case since all the information obtained was found on the computer hard drive, which plaintiff was authorized to use. There is no distinction made by the court in Moore that one can be guilty of unauthorized use of a computer by accessing another's e-mail which has been opened and saved to the hard drive, if they are authorized to access the hard drive in the first place. For the same reason, Penal Law §250.25 - Tampering with private communications does not apply since plaintiff did not access anything other than the hard drive which she was authorized to use.

As this Court has found there has been no conduct on the part of plaintiff constituting the crime of eavesdropping, as defined in Penal Law §250.05, defendant's application to suppress the information found on the hard drive under CPLR §4506(1) Eavesdropping evidence; admissibility; motion to suppress in certain cases, is denied. Defendant's application to suppress the information found on the hard drive under CPLR §3103 Protective orders (c) Suppression of information improperly obtained, is also denied. Defendant distinguishes his facts from those before the court in Etzion v. Etzion, 7 Misc.3d 940 (Nass. Cty. 2005), but his reliance thereon is misplaced. In Etzion, the court addressed the issue of discovery of personal and business information which included e-mails to third parties. Unlike here, the plaintiff in Etzion sought discovery of information from personal and business computers, not family computers in the marital home and the court directed that the hard drives of all computers be cloned so as to find all business information. As the court held in Robinson v. Robinson, 308 AD2d 332, 333 (1st Dept. 2003), even if the information was obtained by improper means, suppression under CPLR §3103 (c) is not warranted where the party would be entitled to discovery of the information obtained. See, Robinson, Id. at 333 (holding that even though plaintiff did not obtain defendant's diary through proper means, since the diary was not privileged and plaintiff would have been entitled to discovery of the diary, suppression under CPLR §3103 (c) was not warranted). It is important to note that this court does not even need to address the second prong regarding whether the wife would be entitled to the information found on the hard drive through discovery, as this court holds the information was not obtained by improper means.

Defendant also seeks suppression of the information under CPLR §3103 Protective orders (a) Prevention of abuse, claiming the information obtained is embarrassing and prejudicial to him. Since the issue before the Court is not one for discovery of the information on the hard drive, since it has already been obtained, but rather suppression, CPLR (a) does not apply as it provides for a protective order of a party or person " . . . from whom discovery is sought . . . " (emphasis added). Here, the information has already been obtained, thus a protective order shall not issue.

Another consideration before the court is whether the information, already held by this court to have been properly obtained, is subject to any claims of privilege. See, Robinson, supra. Defendant has not raised any claims of privilege sufficient to warrant suppression. Defendant's arguments of embarrassment and unfair prejudice are also insufficient to warrant suppression. Although defendant correctly states that there is no discovery on the issue of grounds in the Second Department (adultery is alleged herein), the information has already been obtained and no discovery is sought. Further, it may be used for other purposes at trial including the custody dispute. It has been held the a parent's sexual indiscretions in a custody dispute should be considered "only if they are shown to adversely affect the child's welfare". See, Guinan v. Guinan, 102 AD2d 963 (3rd. Dept. 1984). Such is for determination at trial.

Accordingly, the defendant's motion to suppress the information obtained by the plaintiff from the computer hard drive is denied. The information shall not be suppressed at this time, but shall be left to the trial court to determine its relevance to the issues before the trial court and its admissibility at trial. The request for an order directing the return of all clones or copies made of the hard drive is also denied in accordance with this decision.

As a general matter, the use of anonymous captions in matrimonial actions is viewed as addressed to the sound discretion of the trial court, upon consideration of the competing factors of the parties' need for such protection against the public's interest in maintaining public access to our courts. See, Merrick v. Merrick, 154 Misc.2d 559 (Sup. Ct. N.Y.Co. 1992). In the case at bar, the defendant has failed to establish the need for such protection as compared to the strong public interest favoring openness in judicial proceedings. Accordingly, the application for an anonymous caption is denied.

SupremeCourtJusticeJ. Lebowitz