Justin O’Dell has been actively practicing law in Georgia since his admission to the bar in 2002. He founded O’Dell Hungerford Blanchard & Booth Attorneys in January 2013, based on a commitment to clients and community. Mr. O’Dell has litigated bench and jury cases in the U.S. District Court, Northern District of Georgia, and in the various Superior, State, Probate and Juvenile Courts of Metro Atlanta, Georgia. He has also appeared before local government Councils and Commissioners on various client matters.

Mr. O’Dell has a broad range of practice areas including, but not limited to, business and civil litigation disputes, family law matters, probate litigation and property litigation. He has appeared in a variety of forums related to property title and use. Justin has also litigated consumer cases involving personal injury, wrongful foreclosure, wrongful eviction, breach of fiduciary duty and defective construction. He has also successfully represented residential and commercial property owners facing claims of eminent domain. Mr. O’Dell has successfully handled each of the last three election disputes in Cobb County.

Justin O’Dell was raised on a small family farm in Southern Idaho. He attended Furman University, graduating in 1999 with a degree in Political Science. He attended law school at the University of Georgia and completed his Juris Doctorate, cum laude, in 2002. In addition to working on a farm, Mr. O’Dell worked as a summer seasonal wild land firefighter for the U.S. Department of Interior, Bureau of Land Management.

Since coming to Marietta, Mr. O’Dell has become ingrained in the local community through civic and nonprofit service. He serves and has served on various civic and non-profit boards and recently completed a term as President of the Kiwanis Club of Marietta. Mr. O’Dell is an active member of the Cobb Chamber of Commerce and completed the Leadership Cobb program in 2007. Justin is active within the faith community as a member, Deacon and Sunday School Instructor at First Baptist Church of Marietta.

Mr. O’Dell’s work has been recognized in a variety of ways. In 2010, he was named one of the 20 Rising Stars Under 40 in Cobb County, Georgia. Also in 2010, Justin was recognized by the State Bar of Georgia with the Robert Benham Award for Community Service. In 2012, Georgia Power awarded him their annual Citizen Wherever We Serve Award. Super Lawyers selected him for the past three years as a Georgia Rising Star. He has received recognition for outstanding service by the Marietta Kiwanis club and the Cobb Collaborative. In 2015, he was given the Chairman’s Award by the Cobb Chamber of Commerce in recognition for his work in Co-Chairing the 2014 Countywide SPLOST referendum. He was also awarded the 2016 Next Generation Award by the Cobb Young Professionals division of the Cobb Chamber of Commerce.

EMPLOYMENT

Attorney in the Law Firm of O’Dell Hungerford Blanchard & Booth, PC

PROFESSIONAL

ADMISSIONS:

Admitted to practice in all trial and appellate courts of the State of Georgia and in the U.S. District Court, Northern District of Georgia, 11th Circuit Court of Appeals

BAR MEMBERSHIPS:

American Bar Association 2002 – Present

Georgia Bar Association, Georgia Bar No. 549414 2002 – Present

Cobb County Bar Association 2002 – Present

Bylaws Revision Committee 2006 – 2007

Website Redevelopment Team 2007 – 2008

Board of Trustees 2010 – 2011

PUBLICATIONS:

“Trouble Abroad: Microsoft’s Antitrust Problems Under the Law of the European Union” 30 Ga. J. Int’l and Comp. L. 101-139 (2001)

AWARDS/RECOGNITION:

Marietta Kiwanis Outstanding Leadership & Service 2009, 2010, 2011

Justice Robert Benham Award for Community Service 2010

Cobb Life 20 Rising Stars Under 40 2010

Georgia Power “Citizen Wherever We Serve” Award 2012

Super Lawyers Georgia Rising Stars 2013 – 2017

Superlawyers Georgia 2018 – Present

Chairman’s Award – Cobb Chamber 2015

Judge Juanita Stedman Celebrating Families Award 2015

Cobb Young Professionals Next Generation Award 2016

Cobb County Bar Association Richard L. Moore Award (Legal Aid) 2021

Best of Cobb

Best Overall Law Firm 2019, 2020, 2021, 2022

Best Overall Attorney 2019, 2020, 2021, 2022

Best Individual Attorney 2019

Best Divorce/Family Law Attorney 2019

Best Civil Attorney 2019

EDUCATION

University Of Georgia School Of Law

Juris Doctor, Cum Laude 2002

Awards: American Bankruptcy Institute Medal for Excellence in Bankruptcy

Activities: Student Bar Association

Journal of International and Comparative Law

Editorial Board 2002

Furman University

Bachelor Of Arts, Political Science 1999

Honors: Dean’s List

Activities: Sigma Chi Fraternity

COMMUNITY

Corporate Memberships/Partnerships

Cobb Chamber of Commerce 2003-Present

Community Service Recognition Award 2008

Board of Directors 2020 – 2021, 2021 – 2022

Marietta Business Association 2007

Civic/Spiritual Affiliations

First Baptist Church of Marietta 2004 – Present

Sunday School Instructor 2006 – Present

Board of Deacons 2010 – Present

Membership Ministry Chair 2011 – 2012

Deacon Chair 2021 – 2022

Church Leadership Council 2013 – 2014

Financial Oversight Committee 2011 – 2014

Committee Chair 2013 – 2014

Properties Committee 2005 – 2008

Committee Chair 2007 – 2008

Bylaws Revision Task Force 2006 – 2008

Church Parliamentarian 2015 – 2018

Board of Trustees 2018-Present

Board Chair 2020-2021

Kiwanis Club of Marietta 2005 – Present

Club Secretary 2014-2015

Club President 2016-2017

Spiritual Aims Committee 2005

Sports and Social Committee 2005 – 2009

Committee Chair 2006 – 2007,

2007 –2008

2021-2022

Scholarship Committee 2006 – 2007

Membership Committee 2009 – 2010

Committee Co-Chair 2009 – 2010

Programs Committee 2009 – 2010,

2015 – 2016

Young Children Priority One Committee 2010 – 2011

Committee Co-Chair 2010 – 2011

Flag Committee 2006 – Present

Committee Co-Chair 2011 – 2014

2021 – 2022

Fundraising Committee 2013 – 2014

Board of Directors 2012 – 2018

Treasurer/Financial Officer 2013 – 2014

Georgia Kiwanis District

Training Instructor

Bylaws Revision Committee 2019-2021

Leadership Cobb 2006 – 2007

Leadership Cobb Alumni Association 2007 – Present

Public Safety Committee 2007 – 2008

Social Services Committee 2008 – 2010

Committee Chair 2010; 2017; 2021 – 2022

Cobb Youth Leadership/

Education Committee 2018-2019

Leadership Cobb Joint Program Committee Chair 2013 – 2014

Governing Board 2018 – 2019

Dunleith Homeowners Association

President 2006 – 2009

Cobb County Commissioner Richardson’s

Strategic Community Advisory Cabinet

Court’s Liaison 2021

Non-Profit

American Cancer Society

Swordsman’s Ball Committee 2009, 2013, 2014

Event Co-Chair 2014

American Heart Association/American Stroke Association

2015 N.W. Georgia Heart Walk Committee 2015 – 2016

Cobb Community Collaborative

Board of Directors 2007 – 2010

Business Advisory Council 2007 – 2010

Council Chair 2007 – 2009

Cobb County Diaper Day

Founding Committee & Committee Member 2009 – Present

Cobb Alcohol Task Force 2013 – 2015

Policy Council Chair 2013 – 2014

Cobb Housing, Inc.

Board of Directors 2006 – 2010

Marketing Committee 2006 – 2008

Bylaws Revision Chair 2008

Finance Committee 2008 – 2009

Must Ministries

Celebrating Stardom Event Committee 2010

Reconnecting Families, Inc. 2008 – 2016

Board of Directors 2008 – 2016

Fundraising & Development Committee 2008 – 2009

Vice-Chair/Chair Elect 2009 – 2010

Chairman of the Board 2011 – 2012

Governance Committee 2012 – 2013

Annual Fundraiser Co-Chair 2013

SPLOST/E-SPLOST Campaigns

Committee Member 2008, 2009, 2011, 2013

Co-Chairman, Secure Cobb’s Future 2014

PERSONAL

Married to the former Jenni Kalil
- Self-employed as Interior Designer with JKO Design Group, Inc.
Son, Henry Earl O’Dell, born May 25, 2008
Daughter, Charlotte Jean O’Dell, born June 7, 2011
Born in Reno, Nevada and raised in Shoshone, Idaho; eldest of three boys.
Mother, Patricia, Retired Vice-Superintendent of Schools, Twin Falls School District, Twin Falls, Idaho
Father, David, Retired.

REPORTED CASES:

Vatacs Group, Inc. v. Homeside Lending, Inc., 281 Ga. 50, 635 S.E.2d 758 (2006)
In re Fennell, 300 Ga. App. 878 (2009)
Wills v. Arnett, 306 Ga. App. 503 (2010)
In Re: Kauffman, 327 Ga. App. 900 (2014)
Amah v. Whitefield, 331 Ga. App. 258 (2015)
Sullivan v. Bunnell, 340 Ga. App. 283 (2017)
Tselios v. Sarsour, 341 Ga. App. 471 (2017)
SEC v. Torchia, Southerland, Duscio, et. al, 2019 WL 1911823 (11th Cir. Apr. 30, 2019)
Reid v. Lindsey, 348 Ga. 425 (2019)
Web IV, LLC v. Samples Constr., LLC, 349 Ga. App. 607, 607, 824 S.E.2d 107, 108 (2019)

NOTABLE JURY RESULTS:

Buckner v. Complete Wrecker Service, Eviction Services, Inc., Morris, Schneider and Prior, State Court of Dekalb County, (2007). Plaintiff’s verdict for wrongful eviction in excess of $200,000.00.
Burleigh v. Shackelford, State Court of Cobb County (2006). Defendant verdict of only $65,451.17 against a Plaintiff’s request of in excess of $800,000.00.
Weeks v. Huck, Superior Court of Cobb County (2011). Plaintiff’s verdict establishing a property line and award of $20,000.00 attorney’s fees.
Lincoln v. Beaumont Tax Service, Superior Court of Cobb County (2011). Plaintiff’s verdict in excess of $150,000.00, plus award of punitive damages for breach of fiduciary duty and fraud and attorney’s fees arising from negligent tax services.
Perry, Sexton v. Amah, Superior Court of Cobb County (2015). Verdict in excess of $140,000.00, including substantial attorney’s fees, for claims arising from trespass and nuisance over disputed easement rights.
Ledbetter v. Baer, Superior Court of Cobb County (2018). Settlement mid-trial following exposure of false testimony and undisclosed material witness. Favorable boundary line determination for client, plus attorney’s fees.
Gonzales v. Gonzales, Superior Court of Cobb County (2019). Verdict for client of lump sum alimony obligation only $32,000 against a claim of $450,000+. Preservation of separate assets of $900,000+.
Nayyar v. Niloy, Inc. et. al Superior Court of Gwinnett County (2021). Defense verdict against multimillion claim by Plaintiff.

Notable Non-Jury Results:

M. v. Dr. J., Superior Court of Cobb County (2006). Award in favor of Wife of $8000.00 per month in total support, over $80,000.00 in attorney’s fees and property settlement of approximately $500,000.00.
D v. Ms. B, Superior Court of Cobb County (2007). Award of custody of infant to Father due to abandonment, alienation and erratic behavior of Mother.
In RE: Mrs. B, Probate Court of Gilmer County (2007). Successful defense and prosecution involving Guardianship and Conservatorship of incapacitated Mother.
B. v. Debt Collector, Settlement for bad faith and harassment in violation of FDCPA.
Church v. Board of Elections, Superior Court of Cobb County (2008). Successfully obtained new election in race for Mayor of City of Kennesaw.
PMC v. CII Global, Superior Court of Cobb County (2008). Defense of individual partner and prosecution of claims against other partners. Successful enforcement of settlement of dissolution of partnership in favor of client.
Godwin v. Pearlberg, Superior Court of Cobb County (2009). Successful defense to a legal challenge to the eligibility of incumbent City Councilman for reelection before the County Board of Elections and appeal to the Superior Court.
D. v. Mr. D., Superior Court of Cobb County (2010). Judges award of requested property division despite allegations of marital misconduct.
Cardoza v. Wells Fargo, et. al. Superior Court of Cobb County (2010). Successfully set aside foreclosure and returned home to homeowner. Confidential settlement.
D v. Mr. D, Superior Court of Cobb County (2011). Temporary award of substantial alimony, child support and attorney’s fees against high asset executive due to marital misconduct. Temporary award led to substantial settlement terms.
Chemlink v. Christian, et. al, Superior Court of Cobb County (2011). Temporary restraining order, injunction and judgment against employee and third-party entities for violation of covenant not to compete, fraud, conversion of trade secrets and tortuous business practices.
Martin v. Board of Elections, Superior Court of Cobb County (2012). Successfully set aside 2012 election referendum regarding Sunday Sales due to failure to comply with legislation and disenfranchisement of City voters.
F v. Mr. F, Superior Court of Cobb County (2012). Successful divorce defense of high asset executive with compensation, stock options and deferred compensation against claims of spouse for multimillion dollar property award and request for $25,000/month in alimony.
& Mrs. B v. Ms. G, Superior Court of Cherokee County (2012). Successfully defended a Mother against grandparents attempting to take custody away due to allegations of drug use.
Bejdic v. Smitherman, Cobb County, Georgia (2013). Six figure settlement of automobile wreck involving compound fracture of spine against liability insurance and uninsured motorist insurance carriers.
Cobb County School District v. Crawford, Cobb County, Georgia (2013). Successfully defended Principal against false allegation of failure to report. Following the case, the Head of Professional Standards and Ethics was non-renewed and the Lead Investigator resigned. The Cobb County School Board later proposed revised standards for conducting investigations.
H. v. Fitness International, U.S. District Court, N.D. Georgia (2014). Successful settlement of claims involving sexual harassment.
R v. Mrs. R., Superior Court of Paulding County, Georgia (2014). Successful custody case on behalf of a Father against stay-at-home Mother with issues of substance abuse and anger management.
N. v. Mrs. N. Superior Court of Cobb County, Georgia (2015). Successful trial of case after multiple prior counsel failed to obtain relief. Award of custody to Father, along with support, award of 100% of business started by Father back to Father and recovery of fees.
W v. Mrs. C & C. Family. Superior Courts of Gwinnett, Cobb and Paulding. Successful defense of ex-wife and family against multi-county litigation brought by former Husband found to be abusing steroids. Awards include substantial attorney’s fees in each jurisdiction.
Anderson v. Fluid Management, (U.S. District Court, N.D. Georgia) (2016). Successful settlement of wage and hour claim, $160,000.00 for dispatch manager.
In RE:W. (U.S. District Court, N.D. Georgia) (2016). Successful settlement of claims for pharmacy compounding negligence affecting minor child.
P. v. Mrs. P. – Superior Court of Cobb County, Georgia (2017). Successful trial of case involving control of legacy family of business. Substantial asset award and six year alimony award to offset business interference and taking by Husband and Husband’s parents.
Executive Parking v. Ace Parking, S. Phillips – Superior Court of Fulton County (2017). Injunction and award of full attorney’s fees incurred enforcing employee covenant not to compete and recovery of misappropriated corporate information.
A v. Mrs. A. – Superior Court of Cherokee County, Georgia (2017). Custody award of toddler to Father due to demonstration of instability in Mother and Mother’s family.
In RE: Paulding County Pipeline Property Acquisition and Construction Easements (2017). Condemnation defense resulting in award to client 11 times higher than first offer.
Cary v. Cary – Superior Court of Cobb County (2018). Favorable custody award to Mother, plus support and alimony payments in excess of $15,000 per month and property division over $1 million. Award of attorney’s fees over $350,000.00.
Tibbetts v. Galt – Superior Court of Fulton County (2019). Successful dissolution of business partnership, plus award of attorney’s fees.
Morrell v. Presbyterian Village, State Court of Cobb County (2020). Confidential settlement of nursing home injuries.
Cantrell v. Nationwide, Plemons Group, U.S. District Court (2020). Confidential settlement of workplace harassment claims in franchise.

Presentations & Writing:

Technology in the Law Office: Helping Small Firms Compete, Digital Strategies to Keep up with the Big Boys (Georgia Association of Paralegals, October 29, 2010)
Election Challenges in Georgia (2011)
The Court System & You: A Primer for Clergy, Non-Profit Organizations and Churches (February 22, 2011, Cobb County Clergy)
Facebook Meets Voir Dire: The Good, The Bad & The Ugly of Mining the Internet During Litigation (National Association of Legal Secretaries, May 17, 2011; Cobb County Legal Secretaries Association, October 26, 2012; Cobb County Bar Association Family Law Section, December 14, 2012, National Association of Legal Secretaries, July 17, 2014)
Ethics for Litigators, National Business Institute (July 25, 2012)
Dirty Litigation Tactics: Ethics & Professional Conduct, National Business Institute (February 13, 2013)
When You or Your Business Partner Dies? Cobb County Bar Association, (February 2015)
Probate Litigation Basics, National Business Institute (August 19, 2015)
Estate and Trusts Contests, Disputes & Challenges, National Business Institute (August 18, 2016)
Cobb Chamber – Younger Lawyers Section – Panel Discussion, (2019)
Millennials – Exposing Popular Myths Affecting Organization (Multiple Dates)
Cobb Chamber Webinar – Legal Issues Arising from COVID 19, (May 2020)

I. INTRODUCTION

“I’ve nailed him,” your client exclaims during the consultation, handing you a thumb drive. “Just open this and take a look and listen.” Still sipping on the first cup of morning coffee, not really thinking it through, you copy the drive to your server, then open and peruse the drive to find the following:

2022.05.03 – Video Recording of Husband on a “Ring” type security camera entering the home late one night with a blonde in a red dress;

2022.05.03 – Video Recording from a “Nanny Cam” type device in the bedroom capturing the two in flagrante delicto

2022.05.03 – Screenshots on Wife’s phone of Husband’s phone open to text messages between Husband and Wife (Wife says she knew his access code)

2022.05.04 – Audio recording of fight between Husband and Wife on Wife’s phone in which Husband adamantly denies everything

2022.05.04 – Audio recording on the Wife’s phone (which she left on and recording in the kitchen after storming out of the house) of subsequent phone call between Husband and the blonde in the red dress about a cover up and deleting messages

2022.05.05 – GPS tracking data from device planted in Husband’s car by Wife showing Husband leaving the house and driving to the blonde’s house.

2022.05.06 – Screenshots of Husband’s IPAD showing racy photos, e-mails and text messages with the blonde (Access codes and passwords had been changed but Wife successfully managed to guess it).

2022.05 – 2022.06 – Surveillance footage from private investigator showing Husband coming and going from blonde’s residence, dining at restaurants and entering and exiting hotels.

2022.01 – 2022.05 – “Life 360” style data showing Husband’s whereabouts on shared family plan (which was turned off on 2022.05.04).

Having heard the client’s story and viewed several of the above items, you close the laptop and take a deep breath. Now what?

For prosecutors, law enforcement and the like, the use of wiretaps, recording devices and other means to obtain evidence is fairly well-established, albeit being adjusted to advances in technology. Likewise, the law concerning the admissibility of such evidence is well-known and frequently addressed in criminal cases.

However, the evolution of this area of Georgia law outside of criminal prosecution has been dramatic and continues to form as technology allows everyday citizens to become private detectives as massive amounts of data is captured and transmitted through phones and other devices. In many instances, the technology and applications have legitimate purposes related to security and safety. Understanding the admissibility of this evidence, as well as evidence obtained from the same proverbial tree, is critical not only in the presentation of a case, but also in protecting attorneys from inadvertent violations of the Rules of Professional Conduct.

I. Applicable Law and Analysis

The Law

The various statutes addressing these situations are contained within the criminal code, specifically at O.C.G.A. §16-11-60, et seq. In the context presented here, the critical code section is also the shortest:

No evidence obtained in a manner which violates any of the provisions of this part shall be admissible in any court of this state except to prove violations of this part. O.C.G.A. §16-11-67.

The prohibition is not limited to criminal prosecution, but extends to civil cases. Further, the prohibition is absolute. Nardone v. United States, 308 U.S. 338, 340-341 (1939) (“The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely the evidence so acquired shall not be used before the court, but that it shall not be used at all.”) See also, Ransom v. Ransom, 253 Ga. 656, 324 S.E.2d 437 (1985) (Evidence obtained surreptitiously by tape recording spouse’s private telephone conversation is evidence obtained in violation of O.C.G.A. § 16-11-67 and is inadmissible for impeachment purposes.) The statute has been interpreted so as to apply to protect all persons from invasions upon their privacy, including invasions made upon the privacy of one spouse by the other in a private place. Ransom, 253 Ga. at 658. (Emphasis in original).

Therefore, in order to determine what is inadmissible, the focus is upon the conduct which violates the provisions of O.C.G.A. §16-11-60. For purposes of these materials, the emphasis is upon those sections involving private citizens rather than law enforcement.

The first section containing prohibitions is O.C.G.A. §16-11-62 which provides:

It shall be unlawful for:

(1) Any person in a clandestine manner intentionally to overhear, transmit, or record or attempt to overhear, transmit, or record the private conversation of another which shall originate in any private place;

(2) Any person, through the use of any device, without the consent of all persons observed, to observe, photograph, or record the activities of another which occur in any private place and out of public view; provided, however, that it shall not be unlawful:

(A) To use any device to observe, photograph, or record the activities of persons incarcerated in any jail, correctional institution, or other facility in which persons who are charged with or who have been convicted of the commission of a crime are incarcerated, provided that such equipment shall not be used while the prisoner is discussing his or her case with his or her attorney;

(B) For an owner or occupier of real property to use for security purposes, crime prevention, or crime detection any device to observe, photograph, or record the activities of persons who are on the property or an approach thereto in areas where there is no reasonable expectation of privacy;

(C) To use for security purposes, crime prevention, or crime detection any device to observe, photograph, or record the activities of persons who are within the curtilage of the residence of the person using such device. A photograph, videotape, or record made in accordance with this subparagraph, or a copy thereof, may be disclosed by such resident to the district attorney or a law enforcement officer and shall be admissible in a judicial proceeding, without the consent of any person observed, photographed, or recorded; or

(D) For a law enforcement officer or his or her agent to use a device in the lawful performance of his or her official duties to observe, photograph, videotape, or record the activities of persons that occur in the presence of such officer or his or her agent;

(3) Any person to go on or about the premises of another or any private place, except as otherwise provided by law, for the purpose of invading the privacy of others by eavesdropping upon their conversations or secretly observing their activities;

(4) Any person intentionally and secretly to intercept by the use of any device, instrument, or apparatus the contents of a message sent by telephone, telegraph, letter, or by any other means of private communication;

(5) Any person to divulge to any unauthorized person or authority the content or substance of any private message intercepted lawfully in the manner provided for in Code Section 16-11-65;

(6) Any person to sell, give, or distribute, without legal authority, to any person or entity any photograph, videotape, or record, or copies thereof, of the activities of another which occur in any private place and out of public view without the consent of all persons observed;

(7) Any person, through the use of any device, without the consent of all patients observed, to knowingly photograph or record the activities of patients which occur in a facility that is operated by a county board of health created pursuant to Code Section 31-3-1, except that such acts shall not be unlawful as provided in subparagraphs (2)(A) through (2)(D) of this Code section;

(8) Any person to intentionally and in a clandestine manner place, or direct someone else to place, a global positioning system monitoring device, or any other electronic monitoring device, on a motor vehicle owned or leased by another person without the consent of such person when such person has a protective order pursuant to Code Section 17-17-16, 19-13-4, or 19-13A-4, or a protective order from another jurisdiction, against the person who places, or directs another to place, the global positioning system monitoring device or other electronic device. Nothing in this paragraph shall be construed to limit electronic monitoring as provided in Code Sections 31-7-12, 31-7-12.1, and 31-6-2; or

(9) Any person to commit any other acts of a nature similar to those set out in paragraphs (1) through (8) of this Code section which invade the privacy of another.

The critical definitions for purposes of the code section are set for at O.C.G.A. §16-11-60:

(1) “Device” means an instrument or apparatus used for overhearing, recording, intercepting, or transmitting sounds or for observing, photographing, videotaping, recording, or transmitting visual images and which involves in its operation electricity, electronics, or infrared, laser, or similar beams. Without limiting the generality of the foregoing, the term “device” shall specifically include any camera, photographic equipment, video equipment, or other similar equipment or any electronic, mechanical, or other apparatus which can be used to intercept a wire, oral, or electronic communication other than:

(A) Any telephone or telegraph instrument, equipment, or facility or any component thereof:

(i) Furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of its business; or

(ii) Being used by a provider of wire or electronic communication service in the ordinary course of its business or by an investigative or law enforcement officer in the ordinary course of his or her duties; or

(B) A hearing aid or similar device being used to correct subnormal hearing to not better than normal;

(D) A “pen register” or “trap and trace device” as defined in this Code section.

(2) “Pen register” means a device or process which records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted; provided, however, that such information shall not include the contents of any communication; but such term does not include any device or process used by a provider or customer of a wire or electronic communication service for billing, or recording as an incident to billing, for communications services provided by such provider or any device or process used by a provider or customer of a wire communication service for cost accounting or other like purposes in the ordinary course its business.

(3) “Private place” means a place where there is a reasonable expectation of privacy.

(4) “Trap and trace device” means a device or process which captures the incoming electronic or other impulses which identify the originating number or other dialing, routing, addressing, and signaling information reasonably likely to identify the source of a wire or electronic communication; provided, however, that such information shall not include the contents of any communication.

For purposes of civil matters (and the hypothetical presented herein) the most frequent issues arise under parts (1), (2), (4) and (8) of O.C.G.A. §16-11-62. Part “B” below focuses on those subjects and the exceptions thereto. Part “C” focuses on the provisions for recording and consent of communications involving minor children. Part “D” addresses ethical and professional concerns for lawyers arising from disclosure and knowledge of potentially violative information.

Improper Conduct Resulting in Illegal Evidence

Eavesdropping

OCGA § 16-11-62(1) expressly makes it unlawful for “any person in a clandestine manner intentionally to overhear, transmit, or record or attempt to overhear, transmit, or record the private conversation of another which shall originate in any private place.” Accordingly, evidence obtained by such means (commonly by eavesdropping or through the use of a placed recording device) is inadmissible for any purpose.

The determination of legality hinges upon whether the conversation was “private” and whether the same originated in a “private place.” Although “private” is not expressly defined in the statute, “private place” is defined as being any place in which there exists a reasonable expectation of privacy. O.C.G.A. §16-11-60. Likewise, for purposes of Title 16, a public place is defined at OCGA § 16-1-3 (15) as “any place where the conduct involved may reasonably be expected to be viewed by people other than members of the actor’s family or household”

In making a determination of a “reasonable expectation of privacy” under this statute, the Georgia Courts have looked to the very well-established tests set forth under Fourth Amendment jurisprudence, commonly referred to as the Katz factors based on Katz v. United States, 389 U. S. 347 (1967). See State v. Cohen, 302 Ga. 616, 630 (2017) (note concurring opinions disagreeing with the consideration of Fourth Amendment jurisprudence).

The determination is a two-part analysis. The first is whether the individual, by his conduct, has “exhibited an actual (subjective) expectation of privacy,” 389 U.S., at 361 and whether the individual has shown that “he seeks to preserve [something] as private.” Id., at 351. The second question is whether the individual’s subjective expectation of privacy is “one that society is prepared to recognize as ‘reasonable,'” id., at 361 and whether the individual’s expectation, viewed objectively, is “justifiable” under the circumstances. Id., at 353.

Thus, the inquiry regarding the expectation of privacy is a factually intensive one. Georgia Courts have provided some guidance through various decisions. Highlights include:

Kelley v. State, 233 Ga. App. 244 (1998) (sixteen-year-old girl had a reasonable expectation of privacy against her own family members when she was passed out nude in the family’s home bathroom in the act of or following bathing).

Moses v. State, 328 Ga. App. 625 (2014) (homeowner did not lose reasonable expectation of privacy “by allowing persons such as household residents, family members of residents, or housecleaners access to the house”)

Video Surveillance and Recording

While technology related to the interception of verbal medium (essentially audio recording devices) has existed and been affordable for some period of time, recent advances have created the means for virtually everyone to capture photo/video footage on command and to capture and obtain photo/video footage through undetectable means. For this reason, the portion of the code section relevant to photo and video surveillance and recording is far more verbose.

The prohibitive portion of the statute is analogous to subpart (1) related to eavesdropping:

Again, the emphasis and determination of a “private place” and “public” view are tied to the reasonable expectation of privacy discussed above. However, unlike the eavesdropping subpart, the subpart (2) on video recording contains notable exclusions (in other words, lawful activity). Exceptions (A) and (D) involve law enforcement exceptions. For civil purposes, parts (B) and (C) are most relevant. It is also noteworthy that Georgia law does not require the photographs to have been developed or the photos or video recording to have been shown to third parties for the statute to have been violated. Kelley v. State, 233 Ga. App. (1998) (Development of film or showing photographs to others was not required for the offense of invasion of privacy).

Exclusions (B) and (C) provide:

Both exclusions relate to a security and crime prevention detection exception. Exclusion (B) relates to security devices on any property in which no reasonable expectation of privacy exists. Typically speaking, these would be security cameras in and around commercial properties, automobile dash cameras facing outward and recording public streets, video footage shot in public areas and the like. The degree to which the “public” nature of the prohibited recording became critical is in the decision in Gary v. State, 338 Ga. App. 403 (2016) (Defendant’s act of using a cell-phone camera to take video recordings underneath the victim’s skirt as the victim walked through the store where the defendant was employed did not violate the criminal invasion of privacy statute because the store was a public area, not a private place, and the statute criminalized conduct as to an individual who was in a private place). The conduct in Gary has since been addressed and prohibited by the General Assembly in other statutes.

Also noteworthy under exclusion (B) is that the person creating the recording may be either the owner or occupier of the property. This would obviously include a lawful tenant or renter, but has also been interpreted as including an elderly resident in a care facility within the confines of her room. Nuckles v. State, 310 Ga. 624 (2020).

Exclusion (C) provides the same exception for the “curtilage of the residence of the person using the device.” It should be noted that earlier inconsistency in exclusion (C) with the overall prohibition identified in Rutter v. Rutter, 294 Ga 1 (2013) was remedied by the General Assembly in 2014 to the current version of the statute. Contained within that clause are a number of critical phrases which narrow the degree to which the lawful conduct exception might apply.

First, the entire phrase is still within the umbrella of devices for security purposes, crime prevention, or crime detection. It is the purpose of the device as intended (not as used) which controls. For example, the installation of a “nanny cam” or similar device for purposes of monitoring the safety of a child or infant would fall within the exception. However, the installation of the same device in the same location in order to watch the Husband or Wife while the other is out of town does not. However, in both the initial decision of the Court of Appeals in Rutter and the more recent case of Rimert v. Meriwether & Tharp, LLC, the exception to the statute could be met (but has not been definitely resolved) under the auspices of detection of the crimes of child abuse/neglect and adultery. Rutter v. Rutter, 316 Ga. App. 894 (2012); Rimert, 361 Ga. App. 589 (2021) and further that crime detection need not be the sole intent of a party in order to satisfy OCGA § 16-11-62 (2) (C). Rimert, 361 Ga. App. at 594.

Second, the phrase requires that the recording be made “within the curtilage” of the residence of the person using the device. The definition of curtilage is not contained within those at O.C.G.A. §16-11-60. However, this issue was resolved at the Court of Appeals level in Rutter v. Rutter, 316 Ga. App. 894 (2012). The curtilage includes the interior of the residence itself together with the common definition of curtilage. Rutter, 316 Ga. App. at 899, citing United States v. Dunn, 480 U. S. 294, 300 (II) (1987) (“curtilage” usually refers to “the area immediately surrounding a dwelling house”); Thomas v. State, 300 Ga. App. 265 (2009) (“ ‘Curtilage’ has been defined as the yards and grounds of a particular address, its gardens, barns, and buildings.”).

Thirdly, the person making the recording must be a “resident” where the recording is being made. The use of the term “resident” in (C) versus “owner or occupier” in (B) has not been closely examined or distinguished. “Resident” is not a defined term within the chapter. A plain reading of the two subsections would appear to eliminate commercial property from (C). It is also apparent that (C) would not be interpreted so as to cover any device (whether for security purposes or otherwise) being used by someone other than the resident.

Interception of Text & E-mail Messages

The criminality and resulting prohibition of evidence obtained by opening, hacking or otherwise intercepting e-mails, text messages, letters and other written documentation is contained within subpart (4):

Although early decisions of the Supreme Court of Georgia held that communications by radio wave (including cell telephone transmissions) were not private insofar as radio waves moved in public, those decisions were overruled and clarified in Barlow v. Barlow, 272 Ga. 102 (2000) such that all such communications would now be covered. Georgia courts have not addressed the most common fact pattern in the civil context – one party obtaining text messages or e-mails by the fact that said party knows (or is able to guess) the other party’s password and unlock an account or mobile device to obtain messages. The only cases near the subject arise in context of employment law. Both suggest that, as with the other subparts of the statute, the factual determination of a reasonable expectation of privacy regarding the communications will control.

In Sitton v. Print Direction, Inc., 312 Ga. App. 365 (2011), a case which focused more specifically on a companion statute for computer invasion of privacy at O.C.G.A. §16-9-93, the Court held that the evidentiary bar to admission did not prohibit a company president’s perusal of the employee’s email on the computer, which the employee used in conducting business for the employer and that the same did not constitute such an unreasonable intrusion as to rise to the level of invasion of privacy. The Court held that the president acted in order to obtain evidence in connection with an investigation of improper employee behavior. Id. at 371.

In a dissenting opinion in Kinslow v. State, 311 Ga. 768 (2021), Justices Melton, Ellington and LaGrua would have upheld a conviction under O.C.G.A. §16-9-93 wherein an employee used a computer software program to alter the company computer network so as to cause e-mail intended for his boss to also be forwarded to the Defendant. In dissent, the Justices noted that the conduct may also have been a violation of O.C.G.A. §16-11-62.

GPS Tracking

The conduct prohibited and evidence excluded thereon in subpart (8) was proscribed, in part, in reaction to the Cobb County case involving Melissa Atkins and TFP Company, LLC in which Ms. Atkins sued TFP for invasion of privacy due to the placement of a GPS tracking device on her car at the engagement of her then Husband. A jury returned a verdict in favor of the defense. The subsequently enacted subpart now prohibits:

First and foremost, the specific language including “or direct someone else to place” a tracking style device would eliminate any type of private investigation exception. However, the qualifying language to the entire subpart only prohibits the conduct when the target of the tracking device has a protective order issued by the State of Georgia or a similar order from another state. The general prohibition of subpart (2) could arguably apply as “recording the activities of another” but for that prohibition only applying to activities out of public view. Interestingly, in Jones v. United States, 565 U. S. 400, the Supreme Court of the United States held that “the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search’ under the Fourth Amendment.”

While it is possible that the use of GPS tracking devices may not directly be prohibited by subpart (8) in the absence of a protective order and possible therefore that the evidence obtained from the same could be admitted, there are several other criminal and civil liabilities which could arise due to the installation of such a device. Anyone installing the device whom is not the owner of the vehicle, and not the owner of property upon which the vehicle were located when installed, would arguably be committing a trespass in placing the device. The trespass could be negated by permission from an owner. In addition to trespass, the installation of the device could cause damage to private property which would also generate criminal and/or civil liability.

Catch-all Prohibition

The final subpart of the code section contains a catchall prohibition which, read literally, would swallow each of the enumerated subparts (1) – (8). Subpart (9) renders it unlawful for:

(9) Any person to commit any other acts of a nature similar to those set out in paragraphs (1) through (8) of this Code section which invade the privacy of another.

It would seem that the statute, applied in the criminal context, would survive a Constitutional challenge as to vagueness. See Generally, Hogan v. Atkins, 224 Ga. 358, 359 (1968), citing, Jones v. State, 219 Ga. 848 (1964). United States v. Petrillo, 332 U.S. 1 (1947) and Wilson v. State, 223 Ga. 531 (1967) (Statutory language defining a criminal offense must convey a definite meaning of prohibited conduct according to common understanding and practice. Individuals subjected to punishment cannot be left to guess what a statute meant). However, in the context of civil litigation and the exclusion of evidence, strict Constitutional protections related to due process do not exist.

As a result, conduct such as GPS tracking or other seemingly permissible “intrusions” into privacy could violate subpart (9). If a finding of a violation of this catch-all provision were made, the evidence obtained pursuant to such conduct would be excluded under §16-11-67. This would be particularly true if additional factors were present tending to enhance the expectation of privacy. The existence of a standing order in a domestic case prohibited various behaviors or the existence of litigation between two parties clearly creating a shift in a romantic, marital, employment, professional or other relationship to an adverse posture would be indicative of such facts.

Exceptions for Minor Children

As technology advanced and the statute continued to be updated, the General Assembly also made updates to the parent-child exception provided at O.C.G.A. §16-11-67(b). Part (a) provides the “one party consent” exception to the eavesdropping statute. The statute provides a means to record conversations involving children under the age of 18 through a parent, guardian or Superior Court Judge. Eliminating the statutory requirements for obtaining consent through a judge and focusing on parent and guardian consent, the relevant portions of the statute are as follows:

(b) After obtaining the consent required by this subsection, the telephonic conversations or electronic communications to which a child under the age of 18 years is a party may be recorded and divulged, and such recording and dissemination may be done by a private citizen, law enforcement agency, or prosecutor’s office. Nothing in this subsection shall be construed to require that the recording device be activated by the child. Consent for the recording or divulging of the conversations of a child under the age of 18 years conducted by telephone or electronic communication shall be given only by order of a judge of a superior court upon written application, as provided in subsection (c) of this Code section, or by a parent or guardian of said child as provided in subsection (d) of this Code section. Said recording shall not be used in any prosecution of the child in any delinquency or criminal proceeding. An application to a judge of the superior court made pursuant to this Code section need not comply with the procedures set out in Code Section 16-11-64.

(d) The provisions of this article shall not be construed to prohibit a parent or guardian of a child under 18 years of age, with or without the consent of such minor child, from monitoring or intercepting telephonic conversations of such minor child with another person by use of an extension phone located within the family home, or electronic or other communications of such minor child from within the family home, for the purpose of ensuring the welfare of such minor child. If the parent or guardian has a reasonable or good faith belief that such conversation or communication is evidence of criminal conduct involving such child as a victim or an attempt, conspiracy, or solicitation to involve such child in criminal activity affecting the welfare or best interest of such child, the parent or guardian may disclose the content of such telephonic conversation or electronic communication to the district attorney or a law enforcement officer.

As applied in the civil evidentiary context, it would therefore appear that evidence obtained by a parent in line with subsection (d) would not be subject to exclusion.

Ethical Concerns

The existence of potential criminal liability creates ethical concerns for civil lawyers beyond the mere potential that evidence is excluded. Lawyers practicing criminal defense are likely far more versed and familiar with the potential pitfalls in this arena. However, lawyers regardless of practice area are treated equally under the ethics rules. Lack of knowledge of an ethical issue is no excuse.

First, lawyers cannot and should not counsel clients to violate the law, even to the advantage of a civil case. The Court of Appeals in Rimert v. Meriwether & Tharp, LLC found that summary judgment should have been granted to the law firm in the civil context for advising the client to install the nanny cam. However, the Court made reference to the potentiality of criminal liability for the attorneys arising from the advice. Id at 595 (2021).

Second, lawyers cannot advise a client to destroy evidence of a crime. O.C.G.A. §16-10-50 provides that any person who conceals or destroys evidence of a crime for the purpose of hindering apprehension or punishment shall have committed a felony. Such communications are not privileged. The crime-fraud exception to the attorney-client privilege provides that “the attorney-client privilege does not extend to communications which occur before perpetration of a fraud or commission of a crime and which relate thereto.” Davis v. State, 285 Ga. 343 (2009).

Thirdly, any destruction of evidence by the client (with or without the advice of counsel) would likely constitute spoliation and cause sanctions. Spoliation refers to the destruction, or failure to preserve, evidence that is necessary to contemplated or pending litigation. Once the trial court determines that spoliation occurred, it then considers the following factors in determining the appropriate penalty for spoliation: (1) whether the party seeking sanctions was prejudiced as a result of the destroyed evidence; (2) whether the prejudice could be cured; (3) the practical importance of the evidence; (4) whether the destroying party acted in good or bad faith; and (5) the potential for abuse if any expert testimony about the destroyed evidence was not excluded. To remedy the prejudice resulting from evidence spoliation, a trial court is authorized to (1) charge the jury that spoliation of evidence creates the rebuttable presumption that the evidence would have been harmful to the spoliator; (2) dismiss the case; or (3) exclude testimony about the evidence. Cowan Sys., LLC v. Collier, 361 Ga. App. 823 (2021).

Fourthly, although the client can cite the 5^th Amendment to the Constitution as well as the broader Georgia privilege under O.C.G.A. §24-5-505(a), neither privilege protects the party from turning over relevant and responsive materials in discovery. The Fifth Amendment applies only to compelled incriminating communications that are testimonial in character and does not protect against compelled production of physical evidence. U.S. v. Hubbell, 530 U.S. 27, 120 S. Ct. 2037 (2000); Schmerber v. California, 384 U.S. 757 (1966); Ferega v. State, 286 Ga. App. 808, (2007), cert. denied, (Jan. 28, 2008) and cert. denied, 129 S. Ct. 195 (2008). In order to be “testimonial,” an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information. Id. Furthermore, the assertion of either privilege by a witness carries an inference that the person’s interest may be drawn by the factfinder. Simpson v. Simpson, 233 Ga. 17 (1974).

Thus, the only practical advice a lawyer can give the client in light of being made aware or presented with evidence procured in violation of the law is that it is going to be disclosed, creates potential criminal liability and that only questions concerning the same can justify invoking privilege. Lawyers can take solace that the mere possession or transmittal of such evidence in the course of a civil proceeding has been found not to violate the law. Rimert v. Meriwether & Tharp, LLC, 361 Ga. App. 589, 595 (2021).

Effects of Illegally Obtained Evidence

I. INTRODUCTION

I. Applicable Law and Analysis

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