During an asset search, subpoenas or other court-related discovery can be used to access an adversary’s e-mail.  This access to electronically stored information like e-mail, may be authorized by Fed. R. Civ. P. 26 (a) (1) (A) (ii) & (b) (2) (B) and additional discovery rules, as is more fully set forth in my post "Computer Forensics & An Asset Search".  Besides using discovery rules to elicit evidence about an adversary’s e-mail account, e-mail is sometimes accessed in other ways. 

The divorcing wife in Gurevich v. Gurevich, Slip. Op. 29191(Sup. Ct. Kings County, May 5, 2009), had for example, somehow accessed her estranged husband’s e-mail stored in his e-mail account.  According to the wife, her husband’s e-mails implicated him in a scheme to hide his income via his former business associates and an accountant.  The wife also claimed that she had only gained access to the e-mail by using an authorized password provided by her husband. 

The husband meanwhile, alleged that the divorcing wife had acquired his e-mails through eavesdropping in violation of N.Y. Penal Law §250.05.  The Court however, ultimately found that the e-mails in Gurevich, had not been obtained via eavesdropping.  This was true because the wife did not intercept the stored e-mails while they had been in transit, as is contemplated by  N.Y. Penal Law §250.05. The Court therefore, ruled that N.Y. Civ. Prac. L & R. §4506, (which bars the use of evidence obtained from illegal eavesdropping), did not apply.

Separate from whether "stored" e-mails are subject to N.Y. Penal Law §250.05 and N.Y. Civ. Prac. L & R. § 4506, is the general issue of computer hacking.  If an adversary’s e-mail account is hacked as part of an asset search or otherwise, there could be a violation of 18 U.S.C. §1030 (Fraud and related activity in connection with computers), under some fact-patterns.  Examples of indictments alleging 18 U.S.C. §1030 violations can be found at my post "Computer Intrusions That Violate Privacy Laws".

(Edited January 1, 2010)

(Copyright 2009 Fred L. Abrams