Virginia Lawyers Weekly VA Lawyers Weekly
The Supreme Court of Virginia has been asked to decide whether a divorcing wife violated the state’s “revenge porn” law when she let her lawyer use secretly recorded nude images to question her husband’s girlfriend about adultery.
The case marks what may be the first civil action to enforce the 2014 law that bans malicious dissemination of any image of a person in a state of undress.
The appeal raises questions about whether giving revealing photos to one’s lawyer is privileged and whether a client can be liable under the law when the lawyer is the one who displayed the photos.
The case also illustrates how internet-based home security technology can unexpectedly generate evidence – and ethical issues – in domestic cases.
Virginia Beach Circuit Judge James C. Lewis agreed with the girlfriend that the use of the photographs violated Va. Code § 18.2-386.2. He awarded $20,000 in compensatory and punitive damages and ordered payment of $30,845.18 in attorneys’ fees.
The Supreme Court heard arguments Sept. 17 on the wife’s appeal. The case is Sheehy v. Williams, Record Nos. 190802 and 191089.
Unexpected app feature
The litigation arose from the use of a Nest security camera in the girlfriend’s home, according to facts summarized in her appellate brief. She bought it for security reasons, but later used it to communicate with “Mr. Randolph,” a Navy serviceman who was separated from his wife, Kerry Ann Sheehy.
Sheehy and Randolph had shared access to their own Nest account when they were living together, according to Sheehy’s appellate brief. When Sheehy updated the Nest app on her phone, she then had access to an option called “Nest Cam.”
Through that Nest Cam app on her phone, Sheehy found she could watch live video of the girlfriend undressing and engaging in sexual activity with Randolph, the estranged husband. She took screenshots.
Sheehy gave the screenshot photos to her then-lawyer, Richard E. Garriott Jr. of Virginia Beach, and amended her divorce complaint to allege adultery.
At a deposition of the girlfriend, Garriott “unexpectedly and without warning” displayed the photos and asked if she was the person shown in the images, according to the parties’ briefs. The purpose was to demonstrate to a guardian ad litem that the girlfriend was “not the type of woman Sheehy wanted around her children,” Sheehy’s brief said.
The girlfriend contended the images should have been disclosed prior to the deposition. She also alleged that the images were not properly “locked down” at Garriott’s law firm until after she sued over the use of the images.
The girlfriend testified she was mortified and humiliated by the experience and missed time from work.
First use in civil action
Passed in 2014, Code § 18.2-386.2 makes it a Class 1 misdemeanor to maliciously disseminate nude or semi-nude content with intent to coerce, harass or intimidate. The law was first used that year to bring criminal charges against a woman who published on Facebook a nude photo of her ex-boyfriend’s new girlfriend, according to a published report.
Sheehy’s lawyer, Brandon H. Zeigler of Virginia Beach, said he could not find any record of the law being used in a civil action.
On appeal, Sheehy argued the trial lacked proof of required elements of “malicious” dissemination with the “intent to coerce, harass, or intimidate.”
“This case is about Appellee’s attempt to manipulate the meaning of an untested statute to allow her to financially recover for her affair, rather than take responsibility for her own actions,” Zeigler wrote in Sheehy’s brief.
Applying the statute to the facts “would deeply undermine attorney-client privilege and the free exchange that it protects and have a chilling effect on the discovery process,” Ziegler argued. Erin C. McDaniel also is credited on the brief.
To hold that Sheehy’s delivery of the photos to her lawyer violated the statute would put an “amazing chilling effect on attorney-client communications,” Zeigler argued in a remote hearing with the justices. The images were used “in the most limited possible way,” Zeigler said.
“She withheld the images, it was not posted anywhere, it was given to one of her three counsel and used one time in a deposition, and then the divorce case settled,” Zeigler said.
Sheehy also argued proof of damages was lacking.
The girlfriend responded that there was “plenty of evidence” to prove both the dissemination and intent elements. Sheehy had admitted to being angry with the girlfriend, argued Kevin E. Martingayle of Virginia Beach, counsel for the girlfriend.
“She and her counsel concealed evidence and ambushed R.W. in a manner reeking of bad faith and with coercion as a goal,” Martingayle wrote.
At oral argument, Martingayle said that the use of the images at the deposition was driven entirely by Sheehy’s anger at her husband.
“This was a total ambush. There was no legitimate use,” he told the justices.
He described the deposition display as a “joint venture” between Sheehy and her lawyer.
Garriott defended his conduct as ethical and “up-front.”
“It was relevant to the case before the court, and I believe I did everything ethically appropriate in advancing my client’s interests,” he said.
Judgment paid
The case has a quirk that could prevent a resolution of the issues by the Supreme Court. The trial court judgment has been paid in full and Martingayle, the girlfriend’s counsel, has filed a satisfaction of judgment in the trial court.
Sheehy sold her home and part of the proceeds was used to pay the judgment in order to remove a lien.
“That means the case is over,” suggested Justice D. Arthur Kelsey. “There’s really nothing for us to reverse.”
Martingayle agreed. He questioned whether the court could act to provide a remedy if the trial judgment were reversed.
“I really don’t know, procedurally, how that would go,” he said.
Other justices had questions about how the court could be satisfied the payment was voluntary and whether it made a difference that the payment did not come directly from Sheehy.
Zeigler contended the payment could not be considered voluntary.
Zeigler declined to comment on the issues of the case since it was pending at the high court. Martingayle was not available for comment.
