Dru Goodman was not happy at home. His wife said she wanted a divorce and he suspected she was having an affair. As often occurs, he told his story to someone working for him. What is unusual is that the staff person employed a private investigator to watch Stacy Goodman. And not just a bit. Between September 2013 and April 2016 surveillance proceeded for 12 hours a day at an aggregate cost of just under $1.3 million. The purported basis of this engagement was to protect Dru as an officer of his business. An attorney was also engaged to provide supervision to the surveillance.
Dru initially did not know about his employee’s engagement of the investigator but he learned about it 2-3 months later. And, it appears he endorsed the concept as surveillance continued. The opinion of the Illinois Appellate Court, published on May 24 informs us that where the initial engagement was related to security for the executive, Dru continued it to establish cohabitation or adultery which might affect his wife’s alimony claim. Dru engaged divorce attorneys to whom the reports were forwarded. In September 2017 Stacy Goodman sought and secured an order under what appears to be Illinois’ protection from abuse statute which forbade the surveillance. Dru appealed that order but the appellate court found no error. In re Marriage of Goodman 2019 IL App 170621-U. When that order expired, Stacy sought to extend it. This time the appeals court intervened to dismiss the trial court’s extension holding that while Dru admitted to the court he might resume surveillance, that was, alone, insufficient cause to grant an extension. In re Marriage of Goodman 2020 IL App 200289-U. Dru had complied with the first order and surveillance, without more, is not itself harassment where done for a legal purpose. Because surveillance is pertinent to the divorce action, the litigation privilege applies.
When the divorce was concluded (date not specified) Stacy brought an action against Dru based on intentional infliction of emotional distress and three claims derivative to the Illinois Domestic Violence Act. The Trial Court granted summary judgment stating that the act did not confer a private cause of action and that surveillance for purposes related to the divorce proceeding was protected by the litigation privilege. The May 24, 2023 opinion by a three judge panel affirmed that dismissal. 2023 IL App (2d) 220086.
In the current appellate case, the court notes that surveillance is commonly used by a variety of litigants as a means of discovering facts or for purposes of impeachment. The first abuse order proscribing surveillance was affirmed because the court found the surveillance excessive. But that was not meant to foreclose future surveillance if it was conducted to effect a legitimate legal goal. Where surveillance is pertinent to divorce litigation a privilege applies, even if it is commenced before, during or after the litigation. Bedin v. Bedin 2021 IL App. (1st) 190723. Going further the court cites Malevitis v. Friedman, 323 Ill. App. 3d 1129 (2001) to say that surveillance need not be directly related to specific issues in the litigation to be privileged. In fact, while nodding to the affirmation of the first abuse injunction, this decision seems to telegraph that the absolute litigation privilege applies even where the litigant’s motives are suspect or his conduct was unreasonable. Bedin. The fact that it was not used at trial is not material. It merely has to have a nexus to the litigation. After all, the court notes, one does not ordinarily surveil another except to find facts.
The leading cases in Pennsylvania on this subject dwell on attorney communications and include, Bochetto v. Gibson, 860 A.2d 67 (Pa. 2004); Post v. Mendel, 507 A.2d 351 (Pa. 1996) and Doe v. Garabedian 2019 U.S. Dist. LEXIS 171835 (E.D. Pa. Oct. 2, 2019). The Illinois case has to do with investigators hired by the litigant. But the privilege discussed in Illinois makes linear sense. There is a long history of defendants employing surveillance to show that a plaintiff’s injury was not disabling. Surveillance of some kind is a sensible approach to prove or disprove a claim. But isn’t 12 hour a day surveillance for 32 months more than a search for evidence? Isn’t that at least an issue that merits a trial?
We have all encountered people who become obsessed with the spouse who leaves them. Meanwhile, we live in a legal environment where spouses can defend their use of surveillance to search for adultery, to show evidence of cohabitation or even employment. So, these would appear to be legitimate areas of inquiry. But in this case, it seems that husband procured roughly 10,000 hours of observation of his estranged spouse.
The first rule of law is the rule of reason. There is a legitimate reason for “reasonable” surveillance in cases where disputes arise over whether someone is employed or cohabiting. But for a litigant to claim that he/she invested more than $1 million to defend an alimony claim seems to challenge the outer limits where investigation borders upon harrassment. The case does not describe the level of intrusion. Perhaps the investigators were a mile away. Unfortunately, we don’t have the facts but the length and expense of the surveillance suggest to this writer that this was not an inquiry targeted to nailing down the facts.
N.B. Another issue comes to mind. Wife sued husband. As the courts found, husband has a legitimate basis to conduct reasonable surveillance to defeat or mitigate wife’s claims. But this surveillance began when husband’s corporation (through its employee) hired an investigator to follow the wife. What interest does the corporation have in “following” a private citizen? The opinion alludes to protecting husband and the children of the parties. Perhaps there was a defendant in this case (i.e., husband’s corporation) which had no privilege to conduct surveillance.
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