Wednesday, May 06, 2015

The "Rule," Email and Divorce

For reasons we will get to in a moment,
Barry Epstein . . . sued defendants Paula Epstein (`Paula’), his wife, and Jay Frank, her divorce attorney, alleging: (1) violations of the Electronic Communications Privacy Act (`ECPA’), 18 U.S.C. §§ 2510–2520; and (2) state-law invasion of privacy (`intrusion upon seclusion’). 
Epstein v. Epstein, 2015 WL 1840650 (U.S. District Court for the Northern District of Illinois 2015).  The case was filed in federal court because the District Court had jurisdiction over the ECPA claim because ECPA is a federal statute.  As Wikipedia explains, Article III of the U.S. Constitution lets federal courts, including U.S. District Courts, hear civil suits in which the plaintiff “has alleged a violation of . . . federal law.”
As the U.S. District Court Judge who has the case noted, Barry Epstein initiated the lawsuit by filing a “complaint”, which, as Wikipedia also explains, is a
formal legal document that sets out the facts and legal reasons . . . that the filing party or parties (the plaintiff(s)) believes are sufficient to support a claim against the party or parties against whom the claim is brought (the defendant(s)) that entitles the plaintiff(s) to a remedy (either money damages or injunctive relief). For example, the Federal Rules ofCivil Procedure (FRCP) that govern civil litigation in United States [federal] courts provide that a civil action is commenced with the filing or service of a pleading called a complaint.
The District Court Judge in this case began his opinion by explaining how the suit arose:
In June 2007, Paula accessed Barry's private computer without his `permission, knowledge or consent.’ . . .  Barry alleges `on information and belief' that she caused a `rule’ to be created on his computer whereby emails to and from his email accounts were automatically forwarded to Paula's email accounts. . . .

On May 23, 2011, Paula filed a petition for dissolution of marriage in the Circuit Court of Cook County, Illinois. . . . On October 8, 2014, Barry -- through counsel -- served a Request to Produce Documents (the `Request’) on Paula's divorce attorney, defendant Jay Frank. . . . The Request directed Paula to produce `any and all communications,’ including emails and photographs, that `allegedly relate[ ] to infidelity as alleged by PAULA EPSTEIN or otherwise extramarital relationship [sic].’ . . .

The Request further specified that the requested materials `pertain but are not limited to the following individuals: PAULA EPSTEIN, BRETT EPSTEIN, ROSEVIVIAN HARAYO, JANCIE SALDANA, AND CARLA LIBERMAN.’ . . . Barry alleges that on October 10, 2014, Paula disclosed to Frank the emails she had forwarded from Barry's email accounts. . . . Frank, in turn, delivered copies of the emails, and three photographs, to Barry's counsel on October 23–24, 2014. . . .

Barry alleges that, after receiving the production, he `could not concentrate on anything other than protecting and enforcing his rights, after learning that his personal, private, and confidential communications with third persons were revealed to other individuals.’  . . .  He filed this federal lawsuit three days later. . . .
Epstein v. Epstein, supra.  
In a footnote to the last sentence above, the judge explains that Barry also alleged that

he reported the defendants' alleged conduct to the Federal Bureau of Investigation, the Chicago Police Department (Cyber Crimes Division), the Cook County State's Attorney's Office, and the Attorney Registration and Disciplinary Commission.
Epstein v. Epstein, supra.  In an earlier footnote, the judge explained that
[a]s far as the complaint reveals, Barry and Paula are still married as of this date. See R. 22 ¶ 9 (alleging that the parties `have been married for more than 44 years’) (emphasis added). In any event, their marriage status is irrelevant to the issues in this case.
Epstein v. Epstein, supra.  (The “R.” reference is to the Complaint filed with the court.)
Paula and Frank then filed a motion to dismiss Barry’s Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Epstein v. Epstein, supra.  Rule 12(b)(6) lets a federal judge dismiss more causes of action asserted in a lawsuit when the Complaint’s articulation of the cause(s) of action fails "to state a claim upon which relief can be granted." As Wikipedia explains, the
Rule 12(b)(6) motion . . . is how lawsuits with insufficient legal theories underlying their cause of action are dismissed from court. For example, assault requires intent, so if the plaintiff has failed to plead intent, the defense can seek dismissal by filing a 12(b)(6) motion. `While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).’ Bell Atlantic Corp. v. Twombly, 550 U.S. 544 . .. (2007). . . .
Epstein v. Epstein, supra.  
Here, Paula and Frank moved to dismiss Barry’s Complaint “because he did not allege that the defendants intercepted the emails `contemporaneously’ with their transmission.”
Epstein v. Epstein, supra.  Barry responded to the motion by amending his Complaint to, “among other things”, add “the following allegation”:
The interception was contemporaneous with the transmission insofar as the electronic messages destined for Plaintiff's receipt were forwarded to Defendant PAULA EPSTEIN at the same time they were received by the respective servers of the aforementioned domains, to wit, and
Epstein v. Epstein, supra.  As Wikipedia notes, Rule 15 of the Federal Rules of Civil Procedure lets plaintiffs amend their Complaints “once before an answer is filed”.  The same entry also notes that the party and/or parties being sued must file an “answer” to the Complaint in which they must “admit or deny every element of the plaintiff’s claim.”
The judge goes on to note that Barry also
attached to his amended complaint unredacted copies of the `personal, private, and confidential communications’ that he alleges Paula intercepted. . . . Each email indicates the date on which it was originally sent to (or from) Barry's email account, and the date on which it was forwarded to Paula's email account. In most cases, the emails were forwarded to Paula's account months, sometimes years, after Barry sent or received the emails. The shortest interval between an original email, and the email forwarding it to Paula's account, is approximately three hours. . . .
Epstein v. Epstein, supra.  
The judge then took up the issues raised by the Rule 12(b)(6) motion to dismiss, explaining that Barry’s Complaint alleges ECPA claims
against Paula for intercepting electronic communications (Counts I and II), and against Paula (Count III) and Frank (Count IV) for disclosing and using those communications. He has filed his state-law intrusion-upon-seclusion claim against Paula, only (Count V). The defendants contend that Barry has pled himself out of court.
Epstein v. Epstein, supra.  
The judge then addressed the issue raised by the motion to dismiss, i.e., whether Barry alleged, in his Complaint, that the emails were intercepted “contemporaneously” with their transmission.  Epstein v. Epstein, supra.  He began by explaining that under the
ECPA, any person who `intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any . . .  electronic communication’ is subject to a fine, imprisonment, and/or damages. 18 U.S. Code §§ 2511(1)(a), (4)(a), and 2520. The statute defines the term `intercept’ as `the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.’ 18 U.S. Code § 2510(4).
Epstein v. Epstein, supra.  The judge then went on to explain that
[p]rior to 1986, the Federal Wiretap Act applied only to wire and oral communications. See Steve Jackson Games, Inc. v. U.S. Secret Service, 36 F.3d 457 (U.S. Court of Appeals for the 5th Circuit 1994). The statute then -- as now -- did not expressly require contemporaneous interception. But courts reasoned that the requirement best effectuated Congress's apparent intent to bar individuals from using devices to acquire private communications. See, e.g., U.S. v. Turk, 526 F.2d 654 (U.S. Court of Appeals for the 5th Circuit 1976) (`The words “acquisition . . . through the use of any . . . device” suggest that the central concern is with the activity engaged in at the time of the oral communication which causes such communication to be overheard by uninvited listeners’). It also preserved the distinction in the statute between `interception’ and `disclosure.’  U.S. v. Turk, supra.  

When Congress amended the Federal Wiretap Act in 1986 to cover electronic communications, it did not disturb the prevailing judicial interpretation of `interception.’ See Steve Jackson Games v. U.S. Secret Service, supra (concluding that the legislative history of the 1986 amendments `made it crystal clear that Congress did not intend to change the definition of “intercept” as it existed at the time of the amendment’). Since that time, `[e]very circuit court to have considered the matter has held that an ‘intercept’ under the ECPA must occur contemporaneously with transmission.’ Fraser v. Nationwide Mutual Insurance Co., 352 F.3d 107 (U.S. Court of Appeals for the 3rd Circuit 2003).
Epstein v. Epstein, supra.  
Since this judge’s court is in the jurisdiction of the U.S. Court of Appeals for the 7th Circuit, he also explained that while the 7th Circuit “has not expressly adopted the contemporaneity requirement,” one of its decisions, U.S. v. Szymuszkiewicz, 622 F.3d 701 (2010), suggests it may do so in the appropriate case. Epstein v. Epstein, supra.  He goes on to note that a jury convicted Szymuszkiewicz under 18 U.S. Code § 2511(1)(a)
for using a `rule’ to forward to his own account emails sent by third parties to his supervisor. . . . On appeal, Szymuszkiewicz argued that `any message would have reached its destination ([the victim's] inbox) before a copy was made for him.’ . . . The email was not `in flight,’ therefore he did not `intercept’ it. U.S. v. Szymuszkiewic, supra. 
Epstein v. Epstein, supra.  
The judge then explains that the 7th Circuit Court of Appeals “rejected Szymuszkiewicz's argument that the `contemporaneity’ requirement imposed by other circuits supported his theory”. Epstein v. Epstein, supra.  As the Szymuszkiewic court explained,
`[s]everal circuits have said that, to violate § 2511, an interception must be “contemporaneous” with the communication. . . . Szymuszkiewicz sees this as support for his “in flight” reading, but it is not. “Contemporaneous” differs from “in the middle” or any football metaphor. Either the server in Kansas City or Infusino's computer made copies of the messages for Szymuszkiewicz within a second of each message's arrival and assembly; if both Szymuszkiewicz and Infusino were sitting at their computers at the same time, they would have received each message with no more than an eyeblink in between. That's contemporaneous by any standard. Even if Infusino's computer . . . was doing the duplication and forwarding, it was effectively acting as just another router, sending packets along to their destination, and Councilman's [U.S. v. Councilman, 418 F.3d 67 (U.S. Court of Appeals for the 1st Circuit 2005)] conclusion that the Wiretap Act applies to messages that reside briefly in the memory of packet-switch routers shows that the Act has been violated.’
U.S. v. Szymuszkiewic, supra.  The Epstein judge went on to note that
[a]t least one [U.S. District Court Judge] has construed Szymuszkiewicz to require contemporaneous interception in § 2511 cases. See Shefts v. Petrakis, 2013 WL 489610 (U.S. District Court for the Central District of Illinois 2013). The Court would not go that far, but certainly there is nothing in Szymuszkiewicz suggesting that the 7th Circuit would reject the requirement.
Epstein v. Epstein, supra.  
This District Court Judge therefore found that the cases discussed above were
persuasive and, consistent with what appears to be the unanimous view of courts to date, construe[d] § 2511 to require contemporaneous interception. Barry's contrary arguments are unpersuasive. He argues that a `majority of circuits . . . have either not contemplated the definition of intercept with the Wiretap Act or have not ruled that the Wiretap Act requires interception to be contemporaneous with its transmission.’ . . . (emphasis in the original). 
Epstein v. Epstein, supra.  
He also pointed out that “the only case” Barry cited which held that the statute
not require a contemporaneous interception -- the U.S. Court of Appeal for the 9th Circuit's decision in Konop v. Hawaiian Airlines, Inc., 236 F.3d 1035 (2001) -- was later withdrawn and superseded by a decision adopting that requirement. See Konop v. Hawaiian Airlines, Inc., 262 F.3d 972 (U.S. Court of Appeals for the 9th Circuit 2001) (withdrawing the just-cited decision); see also Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (U.S. Court of Appeals for the 9th Circuit 2002) (`for a website such as Konop's to be ‘intercepted’ in violation of the Wiretap Act, it must be acquired during transmission, not while it is in electronic storage’).

And unlike Szymuszkiewicz and Councilman, it is unnecessary in this case to delve into the technological minutiae of `packet switching’ and email protocols. . . . The alleged interception in this case (retransmission hours or days after the initial email was sent or received) was not `contemporaneous’ under any reasonable definition of that word.

Indeed, after amending his complaint to allege that Paula contemporaneously intercepted his emails, he effectively abandoned that allegation in his responses to the defendants' motions to dismiss. See R 31 at 6–7 (arguing that discovery may reveal other emails that Paula did contemporaneously intercept). Finally, in a last ditch effort to avoid dismissal, Barry argues that `the attached e-mails do not represent all intercepted e-mails,’ and that he should be allowed to conduct discovery to find out whether Paula `has intercepted any of his other e-mails. . . .’ This is pure speculation. The Court grants Paula's motion with respect to Counts I and II and dismisses those claims with prejudice.
Epstein v. Epstein, supra.  
As Wikipedia explains, in U.S. civil procedure, “prejudice” is a
loss or injury, and refers specifically to a formal determination against a claimed legal right or cause of action.  Thus, in a civil case, dismissal without prejudice is a dismissal that allows for re-filing of the case in the future. . . . The inverse phrase is dismissal with prejudice, in which the plaintiff is barred from filing another case on the same claim. . . .

(emphasis in the original). So, unless Mr. Epstein can convince the Court of Appeals to reverse this judge’s ruling, his lawsuit based on these claims cannot be revived.

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