Thursday, May 28, 2015
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C.A. Upholds Order to Man Not to Disclose Materials He Siphoned From Wife’s Two Cell Phones
By a MetNews Staff Writer
A trial court was justified in ordering a man not to disclose to third parties any of the 11 to 12 gigabytes of materials he had downloaded from his estranged wife’s two cell phones, the Court of Appeal held yesterday.
The order by a Contra Costa Superior Court judge provides that Joseph Sweeney be “prohibited from using, copying, printing or disclosing the messages or content of [his wife’s] text messages or e-mail messages or notes, or anything else downloaded from her phone or from what has been called the family computer except as otherwise authorized by the court.”
It was contested whether the husband had standing permission to access the cell phones, and the issue was unresolved by the trial court. The messages includes references to the wife’s visits to a fertility clinic while living with her husband and reflections on former boyfriends.
Writing for the First District’s Div. One, Presiding Justice Jim Humes said the order was properly made under the Domestic Violence Prevention Act (“DVPA “) because the prospect of disclosure caused mental suffering to the wife, Keri Evilsizor, and therefore constituted “abuse.”
Evilsizor is an attorney whose office is in Danville, a town in Contra Costa County. She specializes in landlord-tenant cases.
Rejecting Sweeney’s contention that the order intrudes upon his First Amendment prerogatives, Humes wrote:
“[P]rohibiting Sweeney from disseminating the contents of Evilsizor’s phones does not amount to a prohibited restraint of protected speech because Sweeny’s conduct constituted ‘abuse’ under the DVPA….Sweeney places far too much emphasis on the fact that the trial court specifically declined to address whether Sweeney illegally obtained information from Evilsizor’s phones. Regardless whether the data was acquired legally, the trial court was authorized to conclude that its dissemination as we have described was abusive under the DVPA and not the type of speech afforded protection under the First Amendment.”
The case, which was not certified for publication, is Evilsizor v. Sweeney, A142396.
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