Raiders of the Hard Drive: When “Self- Help” Goes Too Far.

Couples likely to end up before the divorce courts should password-protect their computer data. That’s the lesson to be drawn from a ruling at the end of last month by Mr Justice Eady in the High Court.

He granted Vivian Imerman, a wealthy businessman, an order preventing Mr Immerman’s estranged wife’s brothers – the property tycoons Robert and Vincent Tchenguiz – from using confidential information about his financial assets.

The law firm Farrer & Co has now published a handy briefing on the case, summarising the lessons to be learned.

These are:

1. (a)     Password-protect your own confidential data.

    (b)     If looking at the data of others, don’t try to “crack” a password.

    (c)      Even if you’ve been given a password in the past, be wary about using it if you know that the other person would regard their consent as having been withdrawn.

2.  But, if you have confidential data on your computer which you might prefer your spouse not to see, don’t think you can hide behind passwords and confidentiality.  The duty in matrimonial proceedings to give full and frank disclosure of all your assets and resources, including trust interests, is clear and must be complied with.

3.  If looking at the files or documents of others, don’t look at or copy anything which is protected by legal professional privilege; e.g. letters from or to the other person’s legal advisers, legal advice, etc.

4.   Do not open emails which are not addressed to you and which you’re not authorised to open.

5.   Remember that if you transgress you might well be breaking the criminal law.  You may get more than a judicial ticking off: people go to prison for computer “hacking”.  At least one husband who raided his wife’s computer in the context of matrimonial proceedings was sent to prison – for a first offence.

6.   If you think you have a strong case for search and seizure of the other spouse’s electronic data and/or documents, consider doing so by obtaining a court Order, rather than by self-help.  This is particularly important in relation to data, documents and emails stored on a computer or hard drive, as opposed to “hard copy” documents which may be left lying around the home or which are in files or (unlocked) filing drawers.  Although the hurdle is a high one, if your case is strong enough and you satisfy a judge of the need for such an exceptional order, your search will be lawful, the evidence obtained will be admissible – and you’ll avoid expensive and troublesome collateral litigation of the type in L v L and Imerman v Tchenguiz.

Vivian Imerman, who married Elizabeth Tchenguiz in 2001, shared office space and computer facilities with the brothers from March 2002 until this February when he and his staff were evicted from the premises of Robert Tchenguiz.

Mr Imerman claimed that the brothers, two IT staff and a solicitor had no right to retain or use material surreptitiously taken from the computer system early this year.

The judge said that the amount of material accessed was vast, with the two sides disagreeing over whether it amounted to 250,000 pages or 2.5 million pages.

Robert Tchenguiz’s case was that he took the material because he expected that Mr merman would seek to hide his assets from his wife, who petitioned for divorce in December 2008, and he was concerned to protect his sister’s interests.

He claimed that he had always been permitted unrestricted access to Mr Imerman’s files.

Mr Imerman’s counsel argued that he had no right to access the material which extended beyond anything that could possibly be relevant for the matrimonial proceedings.

The judge said that the contents of some of the documents were obviously confidential and there was a powerful case for saying that any information stored on a computer to which access was password-protected might be regarded as confidential, irrespective of its content.

Granting orders, by way of summary judgment, for the material to be returned and not disclosed to any third party, he added that it was difficult to understand why Mr Imerman should not simply be entitled to have the information back, or rather to take it out of circulation and restrain its use or onward transmission by others.

That was irrespective of how it was originally obtained and by whom.

Mrs Imerman would not be compromised by the grant of the orders sought, since she already had available the files supplied to her solicitors and, if there was evidence to justify it, preservation orders could be made at her request in relation to other categories of documents said to be relevant.

“At all events, those considerations do not justify the continued retention of the material by any of the defendants,” the judge said.

The full judgment can be read here.

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