Poisonous Tree? It Exists.

Fruit of the poisonous tree. We’ve all heard it, but here it is, rearing its ugly head in a Georgia divorce. Mr. and Mrs. Ewing were driving to Florida for a vacation with the kids when Mrs. picked up Mr.’s cell phone to play some music. She mistakenly hit the email button and there was a picture of Mr. with another woman resting her head on his chest. Mrs. queried Mr., who claimed it was a coworker at an office party. Being less than impressed with his answer, Mrs. later on got her husband’s phone and forwarded the offending emails to her email, including the newly discovered sex videos and professions of love between Mr. and his lover.

poisonous-tree_mediumIt went poorly after that, with the husband filing for divorce and then the wife counterclaiming for divorce on the grounds of adultery. The husband asserted that he didn’t have to answer any discovery requests about the affair because it was discovered during the course of the wife’s unlawful snooping on his phone. He believed that such evidence was the “fruit of the poisonous tree.”

The husband cited the Ransom case where it is unlawful evidence when a spouse surreptitiously records telephone conversations between the non-consenting spouse and their lover. In that case, the Court ruled that the conversations are not admissible in court because the Legislature provided no exception for spouses to what is generally an anti-eavesdropping law. So the husband in our case assumed that would work for him. Any maybe it would, but that was not the issue here.

In this case, the wife simply was asking, during discovery, for all emails, phone records, etc. to prove that the adultery happened. Now, true, she had some evidence, but that evidence would probably not be admissible in court. But she used that non-admissible evidence as the basis for her discovery requests to get admissible evidence. And to that, the Court agreed with her.

“Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action[.]” OCGA § 9-11-26 (b) (1). “[I]n the discovery context, courts should and ordinarily do interpret relevant very broadly to mean matter that is relevant to anything that is or may become an issue in the litigation.” Bowden v. Medical Center, Case No. S14G1632, decided June 15, 2015. So is evidence of adultery relevant to a divorce proceeding? Sure it is.

Mrs. Ewing filed for a divorce on the ground of adultery. Georgia is an “irreconcilable differences” state, true; but it is also a fault state and Mrs. Ewing wanted it to be fault. She gets to tell the jury what a no good, rotten, despicable, philandering, cheating, sorry, (and on and on) husband she has. Her plan is, undoubtedly, to get more out of this than a “no fault” divorce would get.

In the process, the Ewings have created some law so that we lawyers have yet another tool in our arsenal. And while this case involved a divorce, the principle would apply in any civil case.

Ain’t love grand? Especially when it is consummated underneath the poisonous tree!

Kelly Burke, master attorney, former district attorney and magistrate judge, is engaged in private practice. He writes about the law, rock’n’roll and politics. These articles are not designed to give legal advice, but are designed to inform the public about how the law affects their daily lives. Contact Kelly at kelly@burkelasseterllc.com to comment on this article or suggest articles that you’d like to see and visit his website at www.kellyrburke.com to view prior columns.

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