Limiting Intrusive Background Checks By Opposing Counsel

Summary

In divorce cases, opposing counsel may conduct extensive background checks to gain leverage, but overly intrusive investigations can cross ethical and legal boundaries. To protect privacy rights, individuals should work with their attorneys to limit unwarranted probes into personal matters unrelated to the divorce, while remaining cooperative with disclosing relevant financial and business records.

Protecting Privacy: Limiting Intrusive Background Checks in Divorce Cases

When going through a divorce, emotions run high and the process can quickly turn adversarial. In an effort to gain an upper hand, spouses and their attorneys may resort to aggressive tactics like conducting extensive background checks and digging for dirt on the other party. While some level of due diligence is expected, overly broad and intrusive background checks can cross ethical and legal lines. As someone facing a divorce, it's important to understand your rights and how to limit unnecessary intrusion into your private life.

Background checks have become increasingly common in divorce cases, especially high net worth divorces where significant assets are at stake. Opposing counsel may scour your financial records, business dealings, personal history, and online presence looking for anything to cast you in a negative light. They may also conduct surveillance, interview acquaintances, and go to great lengths to uncover embarrassing or damaging information to use as leverage in negotiations.

The problem is that many of these tactics venture into legally and ethically dubious territory. Just because information is accessible doesn't mean it's fair game in a divorce proceeding. Everyone has a reasonable expectation of privacy, even during a divorce. Unchecked opposition research and prying can amount to an invasion of privacy and abuse of the legal process.

Drawing the Line: What's Fair Game and What's Off Limits?

Relevant financial documents, business records, real estate holdings, and other assets are obviously necessary to disclose and examine in a divorce - that's not in question. Tax returns, bank statements, loan applications, corporate books, and similar documents are all standard in discovery. But that's very different from digging into decades-old personal history or investigating private matters unrelated to the divorce.

For example, medical records are often considered off-limits unless there is a compelling reason they are relevant to child custody or a spouse's ability to work and earn income. Frivolous requests for medical information including mental health records are seen as overreaching. Similarly, trawling through a spouse's old social media posts, emails, text messages or browser history to find salacious or embarrassing content is a tactic that rarely pays off and may backfire.

In one illustrative case, a woman in a contentious divorce was subjected to a battery of invasive subpoenas and depositions by her husband's legal team. They demanded access to her diaries and journals going back to her teen years, as well as gynecological records. The judge lambasted the husband's counsel for "harassing and embarrassing" the woman with intrusive and irrelevant requests. The judge ruled the subpoenas and deposition questions out of bounds and sanctioned the husband's attorney.

Putting Up Guardrails: Proactive Steps to Limit Intrusive Checks

So what can you do if you believe opposing counsel is overreaching with their background investigation? The first step is to put your own attorney on notice. Insist that your lawyer object to any subpoenas, discovery requests, or deposition questions that venture into off-limits territory. Your attorney should be a zealous advocate for your privacy rights, filing motions for protective orders as needed.

One proactive approach is to get ahead of overly broad requests by being transparent and cooperative with all relevant disclosures from the outset. By promptly turning over all pertinent financial and business documents to the other side, you give them less justification to go on fishing expeditions. Arguing that every request is harassment won't hold water if you're withholding records you're obligated to divulge. Pick your battles and push back hard where they cross the line into unwarranted snooping.

Another protective measure is to limit the other side's access to broad databases and dossiers compiled by private investigators and opposition research firms. Insist on a formal discovery process where requests must state how the information sought is relevant to the case. Don't let your spouse's attorney go on open-ended, self-directed background checks without oversight.

If informal negotiations with the other side break down, file a motion with the court to rein in improper background checks and investigations. Cite case law and statutes in your jurisdiction that prohibit spouses from seeking information beyond what is necessary for the litigation. Etch out clear boundaries, arguing the intrusiveness outweighs any probative value.

Case Study: Bordering on Harassment

In one divorce case involving a high-profile executive, the wife's legal team took intrusive tactics to the extreme. Despite the husband transparently disclosing all financials and business information, the wife's attorneys kept probing. They issued subpoenas to the husband's former employers and college fraternity, seeking records going back 25 years. They contacted his ex-girlfriends from decades ago. They even tried to subpoena his late mother's estate records and question elderly family members. The husband's attorney filed an emergency motion to quash the subpoenas and sought a protective order. In court, they successfully argued this was a "scorched earth" approach meant to embarrass and harass the husband, not gather information relevant to the divorce. The judge called out the wife's legal team for "bordering on abuse of process" and ruled the subpoenas an invasion of privacy. The wife was sanctioned and ordered to pay the husband's legal fees for the motion. The overly aggressive background checks completely backfired.

Striking a Balance

Divorce attorneys have an ethical duty to advocate fiercely for their clients, but that duty has limits. Subjecting the opposing party to needlessly invasive background checks and investigations is contrary to professional conduct rules. It wastes time and legal resources while inflicting additional pain on spouses and families already dealing with the trauma of divorce.

If you believe a background check has crossed the line in your divorce case, raise the issue promptly. Don't be bullied into disclosing private information that has no bearing on the case. Have open discussions with your attorney about what's fair game and what should be off-limits. They should push back on improper information requests and seek court intervention when the other side refuses to be reasonable.

At the same time, recognize that you can't stonewall legitimate discovery. Financial records, real estate documents, business ownership information, and other relevant data points need to be disclosed. Trying to hide assets or obstruct reasonable requests will just breed distrust and prolong the process. The key is striking the right balance between transparency and protecting privacy.

With a competent attorney standing guard to limit overreaching background checks, you can minimize unnecessary intrusion while keeping your divorce on track. Choose your battles, meet your disclosure obligations, but hold the line firmly when a background check amounts to an invasion of privacy or abuse of process. The legal system will back you up.

References

• A case where a woman in a contentious divorce was subjected to invasive subpoenas and depositions by her husband's legal team, demanding access to personal records. The judge ruled against the husband's counsel for "harassing and embarrassing" requests.
• A divorce case involving a high-profile executive where the wife's legal team issued extensive subpoenas to the husband's past employers, college, ex-girlfriends, and family. The judge ruled these requests an invasion of privacy bordering on "abuse of process" and sanctioned the wife.

For more insights, read our Divorce Decoded blog.