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Suspect Your Spouse is Cheating? Georgia’s Discovery Process May Reveal Evidence of Affair

As discussed in our blogs concerning recording telephone conversations and other forms of technological spying, it is never advisable to intentionally spy on your spouse. But, if you unintentionally discover evidence of adultery or if you have other reasons to believe your spouse may be cheating, you may use Georgia's discovery process to uncover potentially admissible evidence to prove adultery. In fact, the discovery process may be used to uncover more evidence, even if the information originally uncovered is itself inadmissible - so long as the discovery tools used are calculated to discovery potentially admissible information. This concept is clearly exemplified in the case of Ewing v. Ewing, A15A1422 (Ga. Ct. App. Sept. 3, 2015).

In Ewing, wife discovered pictures and videos of another woman on husband's phone tending to show husband was cheating. Once husband became aware of wife's discovery, husband filed for divorce. Wife responded by alleging adultery on the part of husband. To support her claim, wife used discovery tools, such as deposition and requests for production of documents to prove husband's affair. Specifically, wife sought to depose husband, husband's paramour, and served subpoenas on husband's cellular company. Husband sought to quash wife's subpoenas and asked the court to issue protective orders preventing the wife from engaging in discovery aimed at proving his adultery. Husband argued that any information gathered by wife would be "fruit of the poison tree" and inadmissible at trial. The presiding judge disagreed, and on interlocutory appeal the Georgia Court of Appeals affirmed the trial judge's decision holding:

Regardless of the admissibility or inadmissibility of the content of the husband's emails, including the photos and videos of [husband's paramour], the wife is entitled to engage in discovery which might lead to admissible evidence of the husband's alleged adultery. Consequently, the trial court did not abuse its discretion in denying the husband's motion for a protective order.

Id. If you are interested in learning more about this case, or this particular issue of Georgia divorce law, check out the case. Not only is it an informative case, but it is also a very interesting read.


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