This post examines a civil case that raises interesting
legal issues concerning workplace privacy and the federal Stored Communications Act, among other issues. The case is Doe v. City of San Francisco, 2012 WL
2132398 (U.S. District Court for the Northern District of California 2012) and
this, as the opinion notes, is basically what it is about:
Plaintiffs Maura Moylan (formerly
referred to as `Jane Doe’; hereinafter `Moylan’) and Anne Raskin (`Raskin’)
contend that they were bullied, harassed, and discriminated against on the
basis of gender by Defendants while employed by the Department of Emergency
Management `“DEM’), and suffered further violations of their right to privacy
and of the federal Stored Communications Act when Defendants accessed Moylan's
email from a shared workplace computer.
Doe v. City of San Francisco,
supra.
Moylan and Raskin
sued the City and County of San Francisco, Janice Madsen, Kym Dougherty, Audrey
Hillman, Heather Grives and “Does 1-10”.
Doe v. City of San Francisco,
supra. Complaint, Doe v. City of San Francisco, et al., 2010 WL 4633993.
Paragraph 6 of the Complaint explains that the City and County of San
Francisco
(`CCSF’), is a political
subdivision of the State of California. . . . CCSF has created and operates the
Department of Emergency Management which oversees the Division of Emergency
Communications (`DEMDEC’). Plaintiff is informed and believes DEMDEC is a
separate unit or division of Defendant CCSF, organized and existing pursuant to
the rules promulgated by the CCSF.
Complaint, Doe v. City of San Francisco, et al., supra.
Paragraphs 7-10 of the Complaint say Madsen, Dougherty,
Hillman and Grives (i) are “United States citizen[s] and resident[s] of the
State of California” and (ii) were, at “all times relevant” to the claims in
the Complaint, “supervisory employee[s] of . . . CCSF,” and acted “within the
course and scope of [their] employment with and pursuant to and under color of
the authority of Defendant CCSF and/or DEMDEC.”
Complaint, Doe v. City of San Francisco, et al., supra. It also states
that each of them is “being sued herein in her individual capacity as well as
her capacity as supervisory employee of Defendant CCSF.” Complaint,
Doe v. City of San Francisco, et al.,
supra.
Paragraph 11 of the Complaint says the plaintiffs included
the ten “John Doe” defendants because they did “not know their true names and/or
capacities at” when they filed the Complaint. Complaint,
Doe v. City of San Francisco, et al.,
supra. It also says that, if
and when they ascertain the identities of the Doe Defendants, they will seek
the court’s permission to amend the Complaint and add them as defendants under
their own names. Complaint, Doe v. City of San
Francisco, et al., supra.
Before we get into the facts and legal claims at issue, I
need to note what the court is doing in this opinion. The Complaint asserts claims under the
federal Stored Communications Act and for invasion of privacy, intentional
infliction of emotional distress and gender discrimination in violation of
California law. Complaint, Doe v. City of San
Francisco, et al., supra at ¶¶ 138-169. We’re only concerned with the first two.
A “seven-day jury trial was held” and on April 11, 2012 the
jury returned its verdict. Doe v. City of San Francisco, et al., supra. The jury found for the plaintiffs on all
their claims and assessed damages, as I calculate it, of $220,000 for Moylan
and $42,000 for Raskin. Verdict, Doe
v. City of San Francisco, et al., 2012 WL 1945186. “[A]t the close
of evidence,” i.e., before the case was given to the jury, the defendants
“timely moved for judgment as a matter of law under Federal Rule of Civil Procedure 50.” Doe v. City of San
Francisco, et al., supra.
As Wikipedia explains a motion for judgment as a matter of
law “is a motion made by a party, during trial, claiming the opposing party has
insufficient evidence to reasonably support its case.” As this opinion notes, under Rule 50(a)(1) of
the Federal Rules of Civil Procedure,
[i]f a party has been fully heard on an
issue during a jury trial and the court finds that a reasonable jury would not
have a legally sufficient basis to find for the party on that issue, the court
may:
(A)
resolve the issue against the party; and (B) grant a motion for judgment as a
matter of law against the party on a claim or defense that, under the
controlling law, can be maintained or defeated only with a favorable finding on
that issue.
Doe v. City of San Francisco, et al., supra
(quoting Rule 50(a)(1)).
Under Rule 50(b) of the Federal Rules of Civil Procedure, if
the judge does not grant the motion for judgment as a matter of law, “the court
is considered to have submitted the action to the jury subject to the court's
later deciding the legal questions raised by the motion.” Doe v. City of San Francisco, et al., supra
(quoting Rule 50(b)). “No later than 28
days after” judgment is entered on the jury’s verdict, the party who filed the
Rule 50 motion can “file a renewed motion for judgment as a matter of law”,
which is clearly what happened here. Doe
v. City of San Francisco, et al., supra (quoting Rule 50(b)). We are
only concerned with the Stored Communications Act and invasion of privacy
claims.
Both apparently arose from a single incident. The Complaint says that on November 26. 2009,
Moylan was told she was the subject of “an internal investigation” and
on November 27, she met with a “union representative, Ron Davis and Terry
Daniels from DHR to discuss the investigation.
Complaint, Doe v. City of San Francisco, et al., ¶¶ 97-98. Davis told Moylan that Madsen
sat down at one of the community
computer in a supervisor's office and `happened to find’ eight (8) or nine (9)
emails up on the screen in full view for her to see. Daniels [said] this
happened on October 18, 2009. Purportedly, these emails all came from [Moylan’s]
personal Yahoo!™ account. Daniels [said her] Yahoo!™ account had a box that was
checked that kept her logged on, and [she] allegedly `forgot’ to hit the `sign
off’ button.
Thus, when Madsen went to use the computer, it showed [Moylan] as
still logged on, so `she decided to snoop.’ . . . [T]he emails were dated from
September 2008 to July 2009. According to Daniels, Madsen, `only’ printed-out
nine (9) or (10) emails but DEC was only `concerned’ about two (2) of the
emails. Daniels showed [them] to [Moylan] and Davis. [Moylan] expressed
extremely confidential, personal and private matters in these emails.
Complaint, Doe v. City of San Francisco, et al., ¶
99. Later, the Complaint says Madsen and
Dougherty accessed Doe’s email account without her permission and “reviewed,
printed, and republished private and confidential emails between” Moylan and
Raskin. Complaint, Doe v. City of San Francisco, et al., ¶
129. The Stored Communications Act (SCA)
and invasion of privacy claims arise from the accessing of the email
account(s).
The judge noted
that the SCA “provides a cause of action against anyone who `intentionally
accesses without authorization a facility through which an electronic communication
service is provided . . . and thereby obtains . . . access to [an]. . . electronic communication while it is in
electronic storage.’” Doe v. City of San
Francisco, et al., supra (quoting
18 U.S. Code §§ 2701(a)(1) and 2707(a)). He
noted that the U.S. Court of Appeals for the Ninth Circuit has compared the
Stored Communications Act to trespass, so it protects stored communications
just as the law of trespass protects items stored in a rented commercial
storage facility. Doe v. City of San
Francisco, et al., supra.
The defendants in
this case argued that Moylan’s and Raskin emails were
open
at the time they were accessed by Defendants -- in other words, that all 28
emails had been opened in separate windows on the computer screen, and then
minimized in such a way as to cause each to appear in succession when one was
closed, and so as to make closing these windows without viewing the contents
impossible.
The technical mechanism or software which would cause this
phenomenon remains unexplained, but, nevertheless, Defendants contend this was
the means through which the emails were discovered, and that, therefore, any
access by Defendants of Plaintiffs' email did not violate the Act.
Doe v. City of San Francisco, et al., supra.
The judge did not
agree: He noted, first, that the
defendants’ argument that viewing open windows – “or windows popping up onto a
screen, after a web mail inbox has been left open” – relied on cases that were
not applicable and that arose in federal district courts “not governed by the
Ninth Circuit’s analytical framework,” which, as noted above, approaches the
issue as a type of trespass. Doe v. City of San Francisco, et al.,
supra.
He also found that
even if one accepted the premise of the defendants’ argument, it relied
“entirely” on their version of the facts, which the plaintiffs “hotly” disputed
and
against which there was substantial
evidence presented. . . . Defendant[s] . . . contend, [they] did not open the
emails . . . but were confronted by those emails, open on the screen, and could
therefore not avoid viewing the contents. The testimony given by various witnesses
at trial, however, did not clearly support -- and in some instances, strongly
disputed -- this version of events. Moylan testified she had not left her
emails open on the screen. . . .
Dougherty provided testimony which seemed in
many ways to contradict itself, first testifying that the emails were open on
the screen, then testifying that clicking the `x’ in the corner of a window --
to close the email window -- somehow caused more email windows to open
spontaneously. . . . Madsen . . . gave . . . a confusing account of how the
emails came to be open, which contradicted her deposition testimony.
Doe v. City of San Francisco, et al.,
supra.
He found this
testimony “supported a version of the facts not acknowledged by Defendants”,
i.e., that they “affirmatively opened” the emails and “sifted through” Moylan’s
inbox. Doe v.
City of San Francisco, et al., supra. So
he denied their motion for judgment as a matter of law on this claim. Doe v.
City of San Francisco, et al., supra.
He then addressed
the invasion of privacy claim, noting that, under California law, the elements
of such a claim are “(1) conduct invading privacy interests, (2) a reasonable
expectation of privacy as to the interests invaded, (3) seriousness of the
invasion and (4) a resultant injury, damage, loss or harm.” Doe v.
City of San Francisco, et al., supra. In
their motion for judgment as a matter of law, the defendants argued that there
was no
reasonable
expectation of privacy on the shared work computer, that, even if there was
such an expectation, it was forfeited by leaving emails open on the screen,
and, furthermore, that even if there was an invasion of privacy, it was not
sufficiently serious to merit relief.
Doe v. City of San Francisco, et al.,
supra.
They also argued
that because the computer “was a workplace machine, the expectation of privacy
is reduced”. Doe v. City of San Francisco, et al., supra. The judge was not persuaded, noting that evidence was
presented showing that the computer at issue was
shared,
but designated specifically for personal use by employees. . . . [T]here was
testimony that employees routinely used this terminal for private, personal
activities such as accessing their personal web-based email, social networking
websites, and even printing their pay stubs. . . .
When a user would
inadvertently leave their inbox open on the screen, it was routinely closed by
the next user. . . . [I]t was understood . . . to be a terminal on which employees were able
to privately access their personal internet utilities and communications,
without expectation of employer intrusion.
Doe v. City of San Francisco, et al.,
supra.
He also rejected
their argument that Moylan forfeited any privacy interest she may have had in
the computer when she left her emails “open” on it, noting that the argument
was “undermined by the evidence presented at trial that she did not, in fact,
leave her email open on the computer.” Doe v.
City of San Francisco, et al., supra. He
denied the defendants’ motion for judgment on this claim because he found that,
based on the evidence presented, a reasonable juror could find that Moylan
“did, in fact, have an unforfeited privacy interest” in the computer. Doe v.
City of San Francisco, et al., supra.
Finally, he
rejected the defendants’ argument that “any invasion” of Moylan’s privacy “was
not sufficiently serious so as to constitute an invasion of privacy.” Doe v.
City of San Francisco, et al., supra. He
found that evidence presented at trial which showed that “these communications
consisted of an employee's complaints to a union steward regarding workplace
conditions” and that “her email inbox was deliberately searched” was enough to
justify a reasonable juror in finding that Moylan’s right to privacy had been
violated. Doe v. City of San Francisco, et al., supra.
The judge therefore
denied the defendants’ motion as to this claim, and as to the remaining
claims. Doe v. City of San Francisco, et al., supra.
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