The Radiologists, Yahoo Mail and "Storage"

This post examines an opinion a U.S. District Court Judge recently issued in a civil suit:  Cheng v. Romo, 2013 WL 6814691 (U.S.District Court for the District of Massachusetts 2013).  As the she noted, the case began when “David Cheng, M.D. sued Laura Romo, M.D., alleging a violation of the Stored Communications Act (“SCA”), 18 U.S. Code §§ 2701–2712, (`Count I’) and an invasion of privacy in violation of Massachusetts General Laws Chapter 214§ 1B (`Count II).’”  Cheng v. Romo, supra.

You might wonder why a U.S. federal District Court judge is presiding over a civil suit that involves a claim under federal law and a claim under state law.  The answer lies in a District Court’s pendent jurisdiction.   As Wikipedia explains, pendent jurisdiction is the

authority of a United States federal court to hear a closely related state law claim against a party already facing a federal claim, described by the Supreme Court as `jurisdiction over nonfederal claims between parties litigating other matters properly before the court.’ Such jurisdiction is granted to encourage both `economy in litigation’, and fairness by eliminating the need for a separate federal and state trial hearing essentially the same facts yet potentially reaching opposite conclusions.

(quoting Finley v.U.S., 490 U.S. 545 (1989) and WilliamsElecs. Games, Inc. v. Garrity, 366 F.3d 569 (U.S. Court of Appeals for the 7^th Circuit 2004)).

The case went to trial before a jury, which found for Cheng “on both counts.”  Cheng v. Romo, supra.  Before the case went to the jury, Romo “moved for judgment as a matter of law as to Count I”, pursuant to Rule 50 of the Federal Rules of Civil Procedure.  Cheng v. Romo, supra.  The judge reserved her ruling on the motion until after the jury returned its verdict; at that point, Romo renewed the motion, which is what the judge is ruling on in this opinion.  Cheng v. Romo, supra.  A motion for judgment as a matter of law asks the judge to issue a ruling based solely on the law at issue in the case, since the jury is responsible for determining the relevant facts.

She began her analysis of Romo’s motion by noting that a District Court Judge can

grant judgment as a matter of law if, after presentation of the nonmoving party's case, there is not a ‘”legally sufficient evidentiary basis' for a reasonable jury to find for that party.” Mag Jewelry Co. v. Cherokee, Inc., 496 F.3d 108 (U.S. Court of Appeals for the 1st Circuit 2007) (quoting Federal Rule of Civil Procedure 50(a)(1)). 

The Court `may not consider the credibility of witnesses, resolve conflicts in testimony, or evaluate the weight of the evidence.’ Mandel v. Boston Phoenix, Inc., 456 F.3d 198 (U.S. Court of Appeals for the1st Circuit 2006) (quoting Cook v. R.I. Dep't of MHRH,10 F.3d 17 (U.S. Court of Appeals for the 1st Circuit 1993)).

Rather, the Court `examin[es] the evidence and all reasonable inferences therefrom “in the light most favorable to the nonmovant” [and asks whether] ‘the evidence could lead a reasonable person to only one conclusion,’ favorable to the movant.’ Caldwell Tanks, Inc. v. Haley & Ward, Inc., 471 F.3d 210 (U.S. Court of Appeals for the 1st Circuit 2006) (quoting Aetna Cas. Sur. Co. v. P & B Autobody, 43 F.3d 1546 (U.S. Court of Appeals for the 1st Circuit 1994)).

Cheng v. Romo, supra. 

In Count I, Cheng accused Romo of violating the Stored Communications Act, so Romo’s motion asked the judge to find, as a matter of law, that Cheng had not pled and had not proven a violation of the SCA.  Cheng v. Romo, supra.  To understand the legal and factual basis of Romo’s motion, it is necessary to understand how the case arose, which the judge explained in an earlier opinion involving different legal issues:

Cheng and Romo were hired in 2000 to work for Advanced Radiology, Inc. (`Advanced’), a Rhode Island corporation and medical practice that provides various medical imaging services. . . . Advanced hired Romo's husband, John Romo, in 2001. . . .

Advanced did not issue email accounts to its employees. Instead, employees created and maintained their own email accounts. . . . When Cheng joined Advanced in 2000, he opened a Yahoo! email account because he no longer had an email account with his old employer. . . . At his deposition, Cheng testified that his Yahoo! account was for his `personal use.’ . . . In or around July, 2000, Cheng gave Romo the password to his Yahoo! email account. . . . 

Although Cheng never `qualified’ Romo's access to his email account in any way, [he] never stated any time limit on his grant of account access to Romo . . . and never changed his password during the relevant time. . . . Cheng's intended purpose for sharing the email accounts was for `reviewing images in connection with [their] work at Advanced Radiology.’ . . . Cheng testified that he relayed the password to Romo via telephone while Cheng was away from the computer so that Romo could `sign in and read a consult e-mail.’ . . .

When asked at her deposition why Cheng had given [her] his password, Romo [said] `[w]e had a radiologist who would do consults for us [and] he would e-mail us with what his impressions were of certain cases that we had questions about.’ . . . Romo explained it would be an `unusual occurrence’ for her to need to go into Cheng's account, and that `[m]aybe ten times a year [she] would be going into [Cheng's] personal e-mail to review a consultant's report’ and she never looked at anything else other than consultant's reports. . . . 

Romo also testified that she did not access Cheng's email account in 2005, 2006, or for most of 2007. . . . Romo later [said] she could not remember accessing Cheng's email account between 2002 and 2007, and agreed that before 2007 `at some point in time the need to have access to [Cheng's] personal account came to an end.’ . . .

Over time, Romo's relationship with Cheng and other shareholders at Advanced deteriorated. . . . In 2008, Romo and her husband `ceased to be employees of Advanced.’ . . .Romo filed a lawsuit in Rhode Island Superior Court in 2008 against Advanced and one of its shareholders. . . . John Romo similarly filed his own lawsuit in Rhode Island Superior Court in 2009 against Advanced and one of its shareholders. . . .

Cheng v. Romo, 2012 WL 6021369 (2012).

Before the Romos filed their suits in the Rhode Island court, in the fall of 2007 and

continuing sometime until after May 20, 2008, Romo accessed Cheng's Yahoo! email account and read a number of Cheng's emails. . . . Romo gave different reasons in her testimony as to why she accessed Cheng's emails, including that she sought information she thought was being withheld by others in the company, . . . that she wanted to investigate disciplinary actions that had been taken against her husband . . . and that she wanted to gather information about Advanced's billing practices. . . . 

Romo printed at least ten of the emails she read and gave these emails to her husband. . . . Some of these emails contain personal content. . . . John Romo produced these emails in October, 2010 as part of his lawsuit in Rhode Island Superior Court. . . .

Romo used her son's computer when she accessed Cheng's email account in the fall of 2007. . . . She . . . used her son's computer because `I didn't want to use my computer. Again, I was very uncomfortable, and this was kind of a desperate attempt on my part to figure out . . . what was going on [in the company].’ . . . Romo testified that the only time she used her son's computer was when she wanted to look at Cheng's emails. . . . 

She testified four times that she was either `uncomfortable’ or `very uncomfortabl[e]’ accessing Cheng's email account. . . . Romo testified that she `didn't want to stay in [Cheng's email account] too long.’ . . . She did not tell anyone but her husband that she was accessing Cheng's emails. . . . Still, she testified that she didn't think it was `wrong’ to access Cheng's emails `because he had given me his password.’ . . .  

Cheng v. Romo, 2012 WL 6021369, supra.

The judge began her analysis of Romo’s motion by noting that Count I of Cheng’s Complaint accused her of violating 18 U.S. Code § 2701(a), which creates civil and/or criminal liability for someone who intentionally (i) accesses without authorization a facility through which an electronic communication service is provided” or (ii) or “exceeds an authorization to access that facility” and “thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system”.  Cheng v. Romo, supra.  She explained that Romo argued that “at the time she read Cheng's emails, they had previously been opened by Cheng and, therefore, were not in `electronic storage’ as that term appears” in § 2701(a). Cheng v. Romo, supra. 

Section 2510(17)(A)-(B) of Title 18 of the U.S. Code defines “electronic storage,” as the phrase is used in the SCA, as (i) “any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof” and (ii) “any storage of such communication by an electronic communication service for purposes of backup protection of such communication”.  Romo argued that the

emails in Cheng's account where neither `temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof’ nor `storage of such communication by an electronic communication service for purposes of backup protection of such communication.’ . . . 

Cheng argue[d] that the emails are covered at least by the second prong of the statute and that the emails, whether previously opened by Cheng or not, were being stored `for purposes of backup protection’ and subject to protection under the SCA and to hold otherwise would result in `an illogical interpretation of [the SCA] that does not comport with the relevant case lay, the plain language of the stature or legislative intent.’

Cheng v. Romo, supra. 

The judge found Cheng’s emails were in electronic storage under the second definition given above, i.e., they were being stored for “backup protection”. Cheng v. Romo, supra. 

Romo argues that Cheng's emails do not fall under 18 U.S. Code § 2510(17)(B) `because Yahoo!'s server was the only location at which the emails were stored when [she] accessed them, [so] they could not possibly have served as “backup” storage.’ . . .

However, the record reflects that when Romo used her web browser to access Cheng's emails, the text of those emails were transmitted to her own Internet browser, which is how she was able to see, and later print, Cheng's emails. See Deposition 97 at 14 (testimony by Cheng that one `could download a representation of the web page as it was displayed to [a user] by the Yahoo! Server’). 

The reasonable inference based on the trial testimony is that regardless of the number of times Cheng or Romo viewed Cheng's email (by downloading web page representations of those emails into their personal computer's web browser) the Yahoo! server continued to store copies of those same emails that previously had been transmitted to Cheng's web browser, and again to Romo's web browser.

On this record, Cheng's emails were held in `storage of such communication by an electronic communication service for purposes of backup protection of such communication.’ This conclusion holds true irrespective of Cheng's testimony that Cheng himself did not further back up his emails.

Cheng v. Romo, supra (emphasis in the original).

The judge therefore found that

there was a “’legally sufficient evidentiary basis' for a reasonable jury to find for [Cheng]” on Count I, the SCA claim. Mag Jewelry, Inc. v. Cherokee, Inc., 496 F.3d 108 (U.S. Court of Appeals for the 1^st Circuit 2007).  For the reasons stated above, the Court DENIES Romo's motion for judgment as a matter of law on Count I.

Cheng v. Romo, supra.