Friday, November 07, 2014

Divorce, Spyware and Summary Judgment

On June 7, 2013, Eloisa C. LaRocca filed a civil suit in federal court in which she seeks damages against her 
ex-husband, Defendant, Joseph R. LaRocca (`LaRocca’) who allegedly entered her home along with Sensebe, a friend of Joe LaRocca, and another man during her absence in July 2011 while she was visiting a relative during the Fourth of July holiday. . . .During their divorce proceeding which was filed by Mr. LaRocca ten days after he entered Ms. LaRocca's home, she began to get the impression that her ex-husband had access to her attorney client communication strategies. Thereafter, she had a computer expert examine her home computer, and he determined that her home computer had been compromised.

Discovery conducted during the divorce proceeding later revealed that her ex-husband purchased a program from SPECTORSOFT, the maker of eBlaster. . . . eBlaster is a computer internet monitoring software designed for corporations which creates a complete record of personal computers and internet activity. . . . It automatically captures and permits review of emails sent and received, chat conversations, instant messages, file downloads, websites visited applications, launched and keystrokes typed. It takes snap shots and creates the equivalent of a digital surveillance tape so that the sequence of everything done on the computer can be seen. See (

After confirming that her husband purchased spyware, Ms. LaRocca, retained a computer forensic expert who not only confirmed the presence of eBlaster on her computer but also located the email address to which the software would transmit all of the intercepted data. The expert determined that the email address was registered to Mr. LaRocca's friend, Sensebe's son. . . . Ms. LaRocca alleges that her ex-husband was given access to this email address. Further, the forensic expert determined that the encrypted password to the program installed on her computer was `joe2286’ indicative of the first name of her ex-husband along with the last four digits of his cell phone number. . . .
LaRocca v. LaRocca, 2013 WL 6440334 (U.S. District Court for the Eastern District of Louisiana 2013) (“LaRocca v. LaRocca 2013”).
In her suit, Ms. LaRocca sought damages from Mr. LaRocca under 18 U.S. Code § 2510, 
the federal Electronic Communications Privacy Act (ECPA). . . .   The LaRoccas are currently in protested divorce proceedings. In Mrs. LaRocca's original complaint she alleges that Mr. LaRocca installed spyware onto her computer without her knowledge in violation of the ECPA. 
LaRocca v. LaRocca, 2014 WL 5040720 (U.S. District Court for the Eastern District of Louisiana 2014) (“LaRocca v. LaRocca 2014”).
On September 16, 2013, Mr. LaRocca filed a Rule 12(b)(6) motion to dismiss Ms. LaRocca’s suit for failing to state a claim upon which relief can be granted.  LaRocca v. LaRocca 2014.  Mrs. LaRocca filed a memo in opposition to his motion on October 22, 2013 and on December 9, 2013,  she “filed an amended and supplemental complaint” (which was probably meant, at least in part, to address issues he raised in his Rule 12(b)(6) motion).  LaRocca v. LaRocca 2014. Then, at some point and through some procedure, the motion to dismiss was "converted" into a motion for summary judgment, which apparently meant both parties had moved for summary judgment.  LaRocca v. LaRocca 2014. 
In his motion, Mr. LaRocca argued that ECPA is not 
designed to apply to a husband's interception of e-mails secretly sent and received by his wife to and from her male `paramour’ from a computer owned by the husband while the parties are living together as husband and wife. Mr. LaRocca cites the case of Simpson v. Simpson, 490 F.2d 803 (U.S. Court of Appeals for the 5th Circuit 1974) in which the Fifth Circuit held that Title III, the Federal Wiretap Act, was not designed to apply to a husband's actions in wiretapping his wife's phone calls without her permission or knowledge. He also disputes Plaintiff's claims that the computer was her separate property, and her claims of privacy to emails stored in that computer.
LaRocca v. LaRocca 2014.
Mrs. LaRocca then filed a response, in which she argued that 
 (1) the complaint states a cause of action under the ECPA, (2) there is no spousal immunity applicable to her claim, because Simpson does not apply to the case at bar as the facts are too dissimilar, (3) the computer was her separate property and (4) she revoked her permission that gave Mr. LaRocca access to her password protected email account on the computer prior his installation of spyware software on that computer.
LaRocca v. LaRocca 2014.   
The judge began his analysis of these arguments by noting that summary judgment 
is proper if the pleadings, depositions, interrogatory answers, and admissions, together with any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Federal Rules of Civil Procedure 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317 (1986). A genuine issue exists if the evidence would allow a reasonable jury to return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).

Although the Court must consider the evidence with all reasonable inferences in the light most favorable to the nonmoving party, the nonmovant must produce specific facts to demonstrate that a genuine issue exists for trial. Webb v. Cardiothoracic Surgery Assocs. of N. Texas, 139 F.3d 532 (U.S. Court of Appeals for the 5th Circuit 1998). The nonmovant must go beyond the pleadings and use affidavits, depositions, interrogatory responses, admissions or other evidence to establish a genuine issue. Id. Accordingly, conclusory rebuttals of the pleadings are insufficient to avoid summary judgment. Travelers Ins. Co. v. Liljeberg Enter., Inc. 7 F.3d 1203 (U.S. Court of Appeals for the 5th Circuit 1993).
LaRocca v. LaRocca 2014.
The judge then took up the substantive issues in the case, explaining that Mr. LaRocca’s
defense is based in part, on the interspousal exception to the federal Wiretapping Act pronounced in Simpson v. Simpson, 490 F.2d 803 (U.S. Court of Appeals for the 5th Circuit 1974). In Simpson, the Fifth Circuit held that Title III of the Federal Wiretap Act was not designed to apply to a husband's actions in wiretapping his wife's phone calls without her permission or knowledge. The court held that these purely personal actions were not contemplated or intended by Congress to be the subject of federal litigation. Simpson v. Simpson, supra.  

In years since, many courts have ruled in line with Simpson. See Anonymous v. Anonymous, 558 F.2d 677 (U.S. Court of Appeals for the 2d Circuit 1977) (Title III does not apply between spouses). Simpson has also been rejected by many jurisdictions, and has received significant negative treatment. Glazner v. Glazner, 347 F.3d 1212 (U.S. Court ofAppeals for the 11th Circuit 2003). However, the case is still valid and controlling in the Fifth Circuit, Kirkland, et al v. Franco, 92 F.Supp.2d 578 (U.S. Court of Appeals for the 5th Circuit 2000), as acknowledged by parties here. In Kirkland, Judge Fallon followed federal law under Simpson under Simpson but made an Erie guess that Louisiana's Electronic Surveillance Act does not create an interspousal exception under that state law. Kirkland, et al. v. Franco, 92 F.Supp.2d 578 (U.S. Court for the Eastern District of Louisiana 2000).
LaRocca v. LaRocca 2014. (Under the U.S. Supreme Court’s holding in Erie Railroad Co. v. Tompkins, 304 U.S. 74 (1938), when federal courts preside over cases brought under their “diversity jurisdiction,” which lets them hear suits involving people from different U.S. states, they apply state law in making relevant decisions.  Since Mrs. LaRocca is filing suit under a federal statute, her cause of action arises under federal law, so the court will apply federal law in deciding legal issues.)
The District Court Judge then analyzed the opinion in Simpson v. Simpson, supra:
In Simpson, a husband obtained a device for recording telephone conversations and attached the device to telephone lines within his home, leading to intercepted conversations between his wife and another man. Simpson v. Simpson, supra. The (U.S. Court of Appeals for the) Fifth Circuit conducted an examination of legislative history of the Federal Wiretap Act and determined that Congress did not intend to intrude on the private matters between husband and wife. Simpson v. Simpson, supra. The court in Simpson itself expressed doubts about its decision and stated that it was limited to the set of facts before them, stating `As should be obvious from the foregoing, we are not without doubts about our decision.’  Simpson v. Simpson, supra.
LaRocca v. LaRocca 2014.
The judge explained that the facts in this case are
similar in some aspect to those of Simpson v. Simpson. Here, Mr. LaRocca was still married to Mrs. LaRocca when he intercepted her communications. However, there are differences to be drawn between the facts in Simpson and the facts in the instant case.

For example, the LaRoccas had already commenced divorce proceedings before the spyware enabled interceptions occurred, and the device containing spyware software was a personal computer, not a telephone. The LaRoccas appeared to be sharing a residence at the time Mr. LaRocca installed that software onto the personal computer. The most important distinctions being 
(1) that the divorce petition had been filed before spyware installation and interception of emails in the current case occurred, and (2) the kind of information being collected was dissimilar. In Simpson, the husband was listening to his wife's telephone conversations to ascertain whether she was being faithful. . . .

Mr. LaRocca's spyware allowed him to access, among other things, privileged communication between Mrs. LaRocca and her divorce attorney -- not simply evidence of her unfaithfulness in their marriage. The Court in Simpson reasoned that Congress did not intend as a basic premise to intrude on the private matters between husband and wife.

However the facts in the instant case do not represent the kind of private marital issues that the Court in Simpson had in mind when they established the interspousal exception. This is more comparable to one litigant accessing unfiltered all communications of an opposing party than simply accessing non-privileged evidence of spousal discord. The fact the parties were still technically married by virtue of their divorce not yet being final does not make the facts substantially similar to Simpson v. Simpson.

In Simpson the husband was listening in on telephone conversations with a specific potential witness, whereas here Mr. LaRocca collected all data including e-mails, instant messages, files downloaded onto her computer, online search activity, and any activity on social media sites. . . . The information gained through wiretapping a computer is different and broader in scope than information gained through listening in on phone calls between targeted witnesses. By virtue of how the two technologies are used and what information can be collected, the distinctions drawn therefrom tend to erode the increasingly discredited conclusions in Simpson.
LaRocca v. LaRocca 2014 (emphasis in the original).
He also noted that another District Court Judge who sits in the Eastern District of Louisiana has distinguished cases that had facts "similar" to those at issue in 
. . . case at bar. . . . Gaubert v. Gaubert, 1999 U.S. Dist. LEXIS 324 (1999) (Mentz, J.). In Gaubert a husband attached a wiretapping device to the phone line within the marital home after the couple had filed for divorce. Judge Mentz distinguished facts from Simpson on the basis of the parties' decaying marriage alone. Gaubert v. Gaubert, supra. 

Here, the Court rules similarly that the end of the marriage changes the analysis. Additionally, the added layers of differing facts regarding the type of information usurped, the technology involved, and the motivation for intercepting further suggest Simpson is inapplicable to the instant case. . . .
LaRocca v. LaRocca 2014.
The judge goes on to explain that
the en banc Eleventh Circuit in Glazner found no spousal immunity with facts that mirror the case at bar: a husband listened in on phone conversations within the marital home between his wife and third parties after divorce proceedings had begun. Glazner v. Glazner, 347 F.3d 1212 (U.S. Court of Appeals for the 11th Circuit 2003). That strong persuasive support leads this writer to suspect similar results are likely to continue in other jurisdictions.

The Fifth Circuit specifically limited its holding to the facts of Simpson. Simpson v. Simpson, supra.  Because the Fifth Circuit explicitly warned against extrapolating the holding of Simpson to cases at all factually different, the Court is reluctant to find that inter-spousal immunity applies in this case which is so unlike Simpson. To reiterate, it appears (1) divorce proceedings were pending, (2) the motivation for wiretapping was different, (3) the kind of data was different, and (4) the information being collected would not be limited to non-privileged evidence of adultery, but also improper access to attorney-client privileged communications.
LaRocca v. LaRocca 2014.
He also found that
the immunity and other contested defenses might apply in a different context at trial. Mr. LaRocca's proof when compared to proof submitted by Mrs. LaRocca, thus far, draws into serious question (1) whether the computer was her separate property, (2) whether she had a reasonable expectation of privacy, and, moreover (3) whether she effectively waived such a right.
LaRocca v. LaRocca 2014.
The judge therefore held that “[g]iven each side's conflicting material evidence, we are constrained to deny all pending motions for summary judgment in deference to trial on the merits to weigh credibility of all parties' evidence.” LaRocca v. LaRocca 2014. And in a final footnote, he explains that his ruling was 
reached with some misgivings about federalizing an issue that eventually requires this Court to interpret state laws about the matrimonial regime, creating a real potential for inconsistent state and federal rulings about same.”
LaRocca v. LaRocca 2014.

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