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Neil Rosenbaum and Damon Dunn Win for Client in Surveillance and Texting Cases

September 7, 2023

Neil Rosenbaum and Damon Dunn successfully represented a client against his ex-wife and her boyfriend in a pair of cases involving a three-year surveillance investigation conducted during divorce proceedings in one case and abusive texts sent to the client’s child in the other.

The plaintiffs sued the client for intentional infliction of emotional distress, invasion of privacy, and “implied” relief under the Illinois Domestic Violence Act after a court order suspending the surveillance was vacated in a prior appeal. Rosenbaum and Dunn successfully defended the client at the trial and appellate levels, resulting in two published opinions.

Summary judgment for the client was affirmed in the first opinion, which held the divorce surveillance was privileged as pertinent to cohabitation, dissipation and parenting issues and that there was no implied private right of action under the Act.

“The implied statutory right of action presented a question of first impression,” Dunn said. “The holding means that an order of protection does not mean automatic civil liability and common law claims are subject to common law defenses.”

In the other case, Rosenbaum and Dunn’s client counter-claimed against the boyfriend for intentional infliction of emotional distress after the client discovered “vile and vulgar” texts sent to the couple’s 13-year-old son.

A trial court granted the boyfriend’s motion for summary judgment, finding the outrageous conduct was “directed at” the child rather than his father. The appellate court reversed, holding “a parent may maintain a cause of action for intentional infliction of emotional distress even if the alleged outrageous conduct was not directed specifically at the plaintiff.”

Particularly with children, the court observed that requiring a plaintiff to be in the presence of the conduct “would sanction the conduct of those who act surreptitiously while punishing those who engage in the same conduct in the open.” The court also explained that the “dissemination of vile and disturbing text messages . . . have the potential to last forever in the digital world,” potentially prolonging the period in which a plaintiff would experience emotional distress.

“The court took an important step in rejecting defenses that would have encouraged targeting of minors on social media without a parent’s knowledge,” Rosenbaum said.

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