By Ben Bedell, From New York Law Journal

A Brooklyn matrimonial judge sent a sheriff to a husband’s home with an ex parte order to seize his iPhone and computers after lawyers for the wife submitted evidence showing her husband had planted spyware on her iPhone just before filing for divorce.

Justice Jeffrey Sunshine released a 57-page decision Friday describing his reasoning for ordering the seizure, which occurred in May.

The wife’s attorney, Raoul Felder of Raoul Felder and Partners, told the court his client had used her cellphone to exchange 202 messages with his firm in the three-month period between the time her computer expert said the iPhone had been “jailbroken” and the time the spyware was discovered.

“The question before the court is now whether plaintiff attempting to gain an advantage in this litigation installed spyware on defendant’s iPhone and used it to intercept defendant’s confidential and/or privileged communications,” said Sunshine.

He said in Crocker C. v. Anne R., that the parties should agree to a referee who would conduct an in camera examination of the husband’s computer devices for evidence that he intercepted the wife’s attorney-client communications, while protecting the husband’s privileged and private communications.

Sunshine recommended Ariel Belen, a former Appellate Division, Second Department, justice who is now associated with JAMS.

If the parties are unable to agree on a referee, Sunshine said he would appoint one.

Sunshine said the wife’s computer expert testified that he had discovered the program “Pangu,” which is used to “jailbreak” or circumvent an iPhone’s anti-spyware protections, along with “mSpy,” which gave the husband all of the iPhone’s “emails, text messages, call history and logs, as well as other information, including the ability to access her physical location via GPS tracking.”

A third program, “IPVANISH,” was used to create a “virtual private network” to encrypt the phone’s data and transfer it to an untraceable Internet account the husband could access from his computers, the opinion said.

Felder submitted bank statements showing the husband had purchased the spyware programs and that they had been installed two weeks before he sued for divorce.

Sunshine also noted that the husband had invoked his Fifth Amendment privilege 58 times during a deposition subsequent to the wife’s discovery of the spyware to avoid answering questions as to whether he planted it and what he had learned, supporting the judge’s “adverse inference” against him.

“We discovered the spyware completely by accident,” Felder said in an interview. “We had a technician looking at the phone only for the purpose of getting some data that supported our case. It was complete serendipity.”

The attorney for the husband, Carolyn Byrne of the Law Offices of Carolyn A. Byrne, sought to block inspection of the seized computer records, saying they were protected by the Fifth Amendment privilege because they constitute testimony by her client’s “digital person.”

“Plaintiff offered no legal basis, and this court is not aware of any, that would substantiate his legal theory that by invoking of his Fifth Amendment privilege plaintiff effectively bars defendant from pursuing the discovery she seeks through other discovery methods that do not involve plaintiff’s testimony,” said Sunshine. ” Furthermore, the court is not aware of any legal basis to deem documents stored on plaintiff’s computing devices to be part of his so-called ‘digital person.'”

Sunshine said it was premature to determine what sanctions would be appropriate in the event privileged communications were found to have been intercepted.

“In my more than 50 years of practicing matrimonial law,” said Felder, “I’ve never seen anything like this. It’s frightening what an ordinary person with commonly available software can do to invade your privacy.”

“It took him 14 minutes to install the spyware package on her phone,” Felder said, noting the download commenced at 1:32 am, when his client was likely asleep.

Byrne did not respond to a voicemail seeking comment.

Sunshine had been preparing to conduct a trial on custody for the couple’s six-year-old twins, and on financial issues.

The opinion noted that the wife had spent $427,982 on the case from its initiation in October 2014 through June 2015, and that the costs included fees paid to private investigator John Nazarian.

The husband has argued that the wife is the “moneyed spouse” by virtue of her inheritance from her father, described in the opinion as the former chairman and chief operating officer of a major tobacco company.

Sunshine rejected the husband’s request that the wife, who has paid $75,000 to finance his attorney’s fees, be ordered to pay more, noting he was employed and had failed to file a net worth statement, as required by matrimonial rules.

For more on this story go to: http://www.newyorklawjournal.com/id=1202738408604/Husband-Alleged-to-Have-Planted-Spyware-on-Wifes-Phone#ixzz3nEIdHKv0