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Epstein v. Epstein - 843 F.3d 1147 (7th Cir. 2016)

Rule:

The Wiretapping and Electronic Surveillance Act makes it unlawful to intentionally intercept or endeavor to intercept any wire, oral, or electronic communication. 18 U.S.C.S. § 2511(1)(a). The Act also prohibits the intentional disclosure or use of the contents of an unlawfully intercepted electronic communication. 18 U.S.C.S. § 2511(1)(c), (d). Intercept is defined as the aural or other acquisition of the contents of any wire, electronic, or oral communication. 18 U.S.C.S. § 2510(4). Electronic communication, in turn, is any transfer of signs of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic or photo-optical system. 18 U.S.C.S. § 2510(12).

Facts:

Paula and Barry Epstein married in 1970. In 2011, Paula filed for divorce in Cook County Circuit Court, accusing her husband of infidelity. During discovery, Barry’s lawyer sent Paula's lawyer a document request asking for production of any and all communications, documents, e-mails, text messages, photographs, notes, credit card slips, bank statements, or other document whatsoever, which allegedly relate to Paula’s allegation of infidelity. In response to the document request, Paula’s lawyer produced copies of email correspondence between Barry and several women. On the face of it, the messages seem to have been forwarded from Barry's email accounts to Paula's. With the divorce action still ongoing, Barry filed the present federal suit against Paula and Paula’s lawyer pursuant to 18 U.S.C. § 2520, which authorized civil actions against persons who violated the Wiretap Act. Barry alleged that Paula unlawfully intercepted, disclosed, and used Barry's emails in violation of the Act, and that Paula’s lawyer violated the Act by unlawfully disclosing and using the emails in the divorce proceeding. Both defendants separately moved to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. According to the defendants, intercepting an email did not violate the Wiretap Act unless the acquisition occurred contemporaneously with the email's transmission. Paula’s lawyer also argued that he could not be liable under the Act for disclosing Barry’s own emails to him in response to his own discovery request in the divorce proceeding. The district judge dismissed the suit on the pleadings.

Issue:

  1. Did the district judge err in dismissing Barry’s complaint against Paula?
  2. Did the district judge err in dismissing Barry’s complaint against Paula’s lawyer?

Answer:

1) Yes. 2) No.

Conclusion:

The court held that the district court erred in dismissing Barry’s Wiretapping and Electronic Surveillance Act claim where the complaint alleged that Paula contemporaneously intercepted his e-mails by having them automatically forwarded to her, and the e-mails attached to the complaint did not conclusively establish that there was no contemporaneous interception. Anent the second issue, the court held that the complaint against Paula’s lawyer was properly dismissed where Barry already knew the contents of the e-mails, thus, the attorney had not disclosed them when he produced them in response to Barry’s discovery request, Moreover, the court held that the complaint did not identify any use the lawyer actually made of the emails. Rather, it alleged that the lawyer intended to use the emails to embarrass Barry during the divorce litigation—in cahoots with Paula and with the aim of extracting a favorable financial settlement; however, as the court noted, the Wiretap act did not prohibit inchoate intent. Accordingly, the court affirmed the judgment to the extent that it dismissed the case against Paula’s lawyer but reversed the judgment in favor of Paula.

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