Wednesday, September 25, 2013

The School, the Parents and the Emails

This post examines an opinion the Michigan Court of Appeals recently issued in a civil case:  Latture v. Emmerling, 2013 WL 5225243 (2013).  The case began when Fay Latture, Superintendent of the Clio, Michigan school district, sued three people:  Rebecca Freifeld and Julie Keyes, who were “parents with children who attended Clio public schools” and Diane Reed, a “school teacher” (presumably at Clio). Latture v. Emmerling, supra.  

Freifeld was also City Commissioner for the city of Clio. Latture v. Emmerling, supra. “At no time were” Freifeld and Keys employees of the Clio school district. Latture v. Emmerling, supra.  Over their years, they

appeared at Board of Education (Board) meetings in their capacity as parents. They voiced several points of dissatisfaction with [Latture’s] performance as Superintendent and made several requests for materials through the Freedom of Information Act (FOIA). In the spring of 2005, [Freifeld and Keys], with the help of . . . Diane Reed, found a way to infiltrate [Latture’s] e-mails.

[Latture] began to notice her e-mails were being deleted when people told her they had e-mailed her and questioned why she had not responded. [She] would go back into her e-mails and could not find what they sent. [Latture] could not account for how people at Board meetings knew whether she was taking her vacation days or not and where she was going; whether she used personal days and did she report them; and whether she was attending certain events.

Parents came to Board meetings with e-mails, sometimes crying, sometimes upset and angry concerning disclosures from the e-mails. Others contacted [Latture] with concerns that confidential information they e-mailed her may have been released. In addition to school related communications [her] e-mails contained medical information, communications with attorneys and private discussions with her sister. . . . [Latture] experienced anxiety, nausea, headaches, stomach ache, and could not sleep. Coworkers, her husband, and sister observed her altered demeanor, anxiety, and physical distress.

Latture v. Emmerling, supra.  

According to the opinion, Latture then reported her suspicions that her email was being

accessed to the Clio School District Director of Technology Howard Buetow, who investigated and reported his findings to Clio Chief of Police James McLellan. Buetow ultimately traced the intrusions to the internet provider (IP) addresses of Freifeld and Keyes. Buetow determined that [Latture’s] e-mails were read 9,081 times.

McLellan conducted an investigation where Reed, Freifeld, and Keyes provided Proffer Statements in which they admitted to accessing [Latture’s] e-mails without authorization. Freifeld additionally admitted to having taken [Latture’s]s trash on three occasions. Reed admitted that in April 2005 she sent [Latture] an e-mail with Spyware software on it that allowed her to record [Latture’] keystrokes and obtain [her] school e-mail password.

Reed admitted to reading e-mails that involved student matters, Board member communications, and some information that would have been embarrassing and caused [Latture] distress if revealed publicly. Reed told McLellan she shared the password with Freifeld and Keyes on May 24, 2005. Keyes admitted the three of them did meet in her basement on that day and accessed [Latture’s] e-mails for over two hours, printing them out and storing them in a binder.

Keyes further admitted that she forwarded the e-mails to other people. Freifeld admitted the same involvement as Reed and Keyes, and added that she anonymously delivered [Latture’s] e-mails to people by leaving them at their residences.

In October 2005, [Latture] took her home computer to Paul Lee, owner of Clio Computers in Clio, Michigan, because it was running slow and she thought it had a virus. Eighty to ninety percent of Lee's daily work dealt with spyware, adware and viruses. Lee told [Latture] her home computer had Spyware on it.

In December 2005, McLellan told [Latture] that her school e-mails had been stolen and that someone had taken her garbage. Around the same time, Buetow told [her] that [Freifeld, Keys] and Reed were the ones that had accessed her school e-mails.

Latture v. Emmerling, supra.  

In January of 2006, “Reed, Keyes, and Freifeld pled guilty to the misdemeanor charge of conspiracy to commit fraudulent access to computers.”  Latture v. Emmerling, supra.  According to the news story you can find here, the three spent some time in jail.  Latture then sued them, alleging three causes of action:  intrusion upon seclusion, intentional infliction of emotional distress and civil conspiracy.  Latture v. Emmerling, supra.  

The opinion says that on “February 28, 2011,” a jury found for Latture on all three claims, “against each defendant” and awarded “damages against Freifeld in the amount of $250,000 and against Keyes in the amount of $125,000.” Latture v. Emmerling, supra.  It does not say if anything was awarded against Reed. Latture v. Emmerling, supra.    

On appeal, the defendants claimed the trial judge should have granted their motions for a directed verdict because Latture “failed to prove all the elements of her intrusion upon seclusion and intentional infliction of emotional distress claims.”   Latture v. Emmerling, supra.  As Wikipedia explains, in a jury trial a directed verdict is

an order from the presiding judge to the jury to return a particular verdict. Typically, the judge orders a directed verdict after finding that no reasonable jury could reach a decision to the contrary. After a directed verdict, there is no longer any need for the jury to decide the case.

The Court of Appeals began its analysis of the defendants’ argument on the intrusion upon seclusion claim by noting that this tort claim has “three elements: (1) the existence of a secret and private subject matter; (2) a right possessed by the plaintiff to keep that subject matter private;” and (3) obtaining information “about that subject matter through some method objectionable to a reasonable man.”  Latture v. Emmerling, supra.    

It began with the issue of whether Latture’s emails were “private,” noting that courts use dictionaries to discern the meaning of particular terms.  Latture v. Emmerling, supra.

Our Court has looked to the Merriam–Webster's Dictionary to define the term private. . . . That definition describes private as, `intended for or restricted to the use of a particular person, group, or class.’ Merriam–Webster's Dictionary (1995). Black's Dictionary further defines `private’ as “confidential; secret.” (17th ed.) Thus, in order for plaintiff's e-mails to have been considered private they must have been `intended for or restricted to the use of a particular person, group, or class.’

[Latture’s] school e-mail was provided by the Clio school district and maintained by the school's computer server. Only individuals with a password, provided by the school district, could use the school e-mail system. There was a specific and limited method by which a limited class of persons could access the e-mails of persons other than themselves and the contents of such observation were confidential. 

The characteristics of the school e-mail system were such that this Court can conclude that the system was restricted and therefore, private between users. Thus, [her] e-mails were private.

Latture v. Emmerling, supra.

The court then took up the issue of whether Latture’s emails “contained private information.” Latture v. Emmerling, supra.  It noted that, according to Latture, she communicated private matters "with
attorneys, parents, and with medical professionals.” Latture v. Emmerling, supra.  The Court of Appeals explained that Michigan courts have held that communications between a lawyer and client and communications involving someone’s medical treatment or condition are private. Latture v. Emmerling, supra.  

 It also noted that Latture “intended the matters in the e-mails to be private.” Latture v. Emmerling, supra.  Given all this, the court found  “sufficient evidence” supported a finding that her “e-mails contained private information. Latture v. Emmerling, supra. 

The court then had to “determine whether defendants read any of the private subject matter” in Latture’s emails. Latture v. Emmerling, supra. Reed admitted she read some emails that

contained private matters and that she shared and forwarded e-mails to Freifeld. Freifeld admitted that she then shared e-mails with Keyes. Buetow determined that e-mails were read over 9,000 times in a matter of just months. Defendants' unfettered access to the entirety of plaintiff's e-mails, subsequently granted them access to private and non-private matters. The trial court appropriately found that there was evidence that defendants read private information from plaintiff's e-mails.

Latture v. Emmerling, supra.

The defendants also claimed they had a right to access and disseminate Latture’s private e-mails.

First, they contend that [Latture] wrongly asserted the privacy rights of her children. Second, they allege that [her] privacy right was voided by the school district's technology policy. . . .

The trial judge found the intrusion was reading any e-mail and accessing garbage. Even if [Latture’s] children's medical information were not considered, there was still evidence of other private matters including communicating with attorneys regarding the lawsuits she was involved in and the private conversations with her sister.

Likewise, the Clio school district's technology policy did not void [Latture’s] claim that she had a right to privacy. The Clio school district e-mail system was a private system that was restricted to use by password holders only. 

Defendants were not employees of the school district, were not password holders and did not have permission to access the school e-mail system. [Latture[ maintained a privacy right against third parties, like the defendants, who would not, under any technology policy, be afforded the opportunity to access her e-mails.

Latture v. Emmerling, supra.

Finally, as to the third element, the court found Latture proved that the information was obtained “`through some method objectionable to a reasonable man” because it was “undisputed that defendants illegally accessed the Clio school’s computer system” and “[c]riminal activity is an objectionable method of obtaining information.”  Latture v. Emmerling, supra. The Court of Appeals therefore held that the trial judge did not err in denying the defendants’ motion for a directed verdict. Latture v. Emmerling, supra.

The Court of Appeals then took up the intentional infliction of emotional distress claim, which has four elements:  “(1) extreme and outrageous conduct; (2) intent or recklessness; (3) causation; and (4) severe emotional distress.”  Latture v. Emmerling, supra.  Here, the defendants claimed their motion for directed verdict should have been granted because Latture (i) “did not prove intent or causation” and (ii) her “severe emotional distress was not solely attributable to defendants, but to a variety of other circumstances occurring at the same time.”  Latture v. Emmerling, supra.  

The Court of Appeals also noted that the trial judge “correctly understood that the claimed extreme and outrageous conduct was actually the infiltration and unprivileged dissemination of [Latture’s] e-mails and the taking of her garbage.” Latture v. Emmerling, supra. 

As to intent and causation, the Court of Appeals explained that a plaintiff can prove “intent or recklessness” by (i) showing that the defendant “specifically intended to cause plaintiff emotional distress” or (ii) sowing the defendant’s conduct “was `so reckless that any reasonable person would know emotional distress would result.’”  Latture v. Emmerling, supra (quoting Lewis v. LeGrow, 258 Mich. App. 175, 760 N.W.2d 675 (Michigan Court of Appeals 2003)).  It then noted that “[d]efendants' admissions to law enforcement and the trial testimony of Reed, are evidence of their motive in accessing and disseminating plaintiff's e-mails”, which means the trial judge did not err in denying the motion for a directed verdict on the intent issue. Latture v. Emmerling, supra. 

It also found Latture presented “competent evidence” on the issue of causation; as noted above, witnesses described her “change in demeanor and behavior after the emails were disseminated” and Latture testified about the physical problems she suffered. Latture v. Emmerling, supra.  “While there was testimony regarding other possible causes for [Latture’s] distress, this Court will not substitute its judgment for the judgment of the jury when `reasonable jurors could honestly have reached different conclusions.’” Latture v. Emmerling, supra (quoting Silberstein v. Pro–Golf of America, Inc., 278 Mich. App 446, 750 N.W.2d 615 (Michigan Court of Appeals 2008)). 

The court therefore found the trial judge did not err on denying a directed verdict on the intentional infliction of emotional distress issue.  Latture v. Emmerling, supra. For these and other reasons, the Court of Appeals affirmed the jury’s verdict.  Latture v. Emmerling, supra. 

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