Andrea Clare v. Kevin Clare ( 2020 )


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  •                        FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    ANDREA JEAN CLARE, Individually,                      No. 19-36039
    Plaintiff-Appellant,
    D.C. No.
    v.                             4:18-cv-05045-
    SAB
    KEVIN P. CLARE, Individually,
    Defendant-Appellee.                      OPINION
    Appeal from the United States District Court
    for the Eastern District of Washington
    Stanley Allen Bastian, Chief District Judge, Presiding
    Argued and Submitted October 9, 2020
    Seattle, Washington
    Filed December 8, 2020
    Before: Michael Daly Hawkins, Ronald Lee Gilman, *
    and Consuelo M. Callahan, Circuit Judges.
    Opinion by Judge Hawkins
    *
    The Honorable Ronald Lee Gilman, United States Circuit Judge
    for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
    2                        CLARE V. CLARE
    SUMMARY **
    Stored Communications Act
    Reversing the district court’s summary judgment in
    favor of the defendant in an action under the Stored
    Communications Act, and remanding, the panel held that a
    husband’s unauthorized access into his wife’s work e-mails
    could constitute a violation of the SCA.
    Reversing in part the district court’s exclusion of a
    declaration submitted by the plaintiff, the panel concluded
    that it was an abuse of discretion to disregard the declarant’s
    personal knowledge about the plaintiff’s e-mail storage. The
    panel concluded that this evidence of the plaintiff’s
    employer’s storage practices, based on the declarant’s
    personal knowledge, did not require expert qualification.
    The panel held that the SCA provides a private cause of
    action against one who intentionally accesses without
    authorization a facility through which an electronic
    communication service is provided and thereby obtains,
    alters, or prevents authorized access to a wire or electronic
    communication while it is in electronic storage. Electronic
    storage includes storage for purposes of backup protection,
    which requires that there be a second, backup copy of a
    message.      The panel concluded that the declaration
    submitted by the plaintiff provided evidence of exactly that,
    and thus created a genuine dispute of material fact with
    respect to whether the e-mails the defendant accessed were
    **
    This summary constitutes no part of the opinion of the court. It
    has been prepared by court staff for the convenience of the reader.
    CLARE V. CLARE                       3
    entitled to protection under the SCA. The panel agreed with
    the Fourth Circuit’s rejection of any distinction between the
    protection afforded to “service copies” immediately
    accessible to a user and “storage copies,” meaning those less
    conveniently accessible.
    COUNSEL
    George E. Telquist (argued), Telare Law PLLC, Richland,
    Washington, for Plaintiff-Appellant.
    William C. Schroeder (argued), KSB Litigation P.S.,
    Spokane, Washington, for Defendant-Appellee.
    OPINION
    HAWKINS, Circuit Judge:
    In this summary judgment appeal we address whether a
    husband’s unauthorized access into his wife’s work e-
    mails—undoubtedly an invasion of her privacy—could also
    constitute a violation of the Stored Communications Act
    (SCA). We conclude that it could and leave it to the trier of
    fact to determine if it was. In the process, we determine it
    was an abuse of discretion for the district court to exclude
    evidence that created a dispute of material fact: whether the
    e-mails at issue were stored “for purposes of backup
    protection.” Accordingly, we reverse and remand.
    BACKGROUND
    Andrea Clare and Kevin Clare were married for ten
    years. During the marriage, Kevin “regularly and routinely”
    4                     CLARE V. CLARE
    sought access to Andrea’s cell phone, text messages, e-mail,
    computer, and other electronic equipment. As their
    relationship deteriorated and she became unhappy with his
    behavior, Andrea told Kevin to stop looking at her messages
    and attempted to block his access by changing her iPhone
    passcode. The phone could be accessed only with Andrea’s
    thumbprint or with the new passcode, which Andrea did not
    share with Kevin. One night while Andrea slept, Kevin used
    her thumbprint to unlock her phone, accessed her work e-
    mail through Microsoft Exchange, and forwarded
    approximately ten e-mails to himself.
    When Andrea moved out of the family home, she
    continued her efforts to stop Kevin’s invasions of privacy by
    changing cell phone carriers and purchasing a new iPhone.
    Kevin’s conduct continued. He accessed and read her work
    e-mail on a formerly shared iPad and used the information
    he learned to his advantage during the couple’s divorce
    proceedings.
    This conduct, some of which Kevin has admitted, formed
    the basis of the case that Andrea and her law firm employer
    later initiated against Kevin and his divorce lawyer. After
    the other parties resolved their claims, Andrea filed a second
    amended complaint alleging one cause of action against
    Kevin under the Stored Communications Act, 
    18 U.S.C. § 2701
     et seq.
    Soon after discovery began, Kevin moved for summary
    judgment, contending that Andrea lacked evidence that the
    e-mails he accessed were in backup storage within the
    meaning of the SCA. In opposition, Andrea submitted the
    declaration of Dan Morgan, an employee of the Information
    Technology (IT) company that provided data protection
    services to her law firm. Asked to investigate whether there
    had been unauthorized access into Andrea’s Microsoft
    CLARE V. CLARE                       5
    Exchange law firm account, Morgan concluded that an
    Apple device other than Andrea’s cell phone or home
    computer logged in using her credentials in both 2017 and
    2018. Morgan also described the private server that he and
    his company maintained for backup storage of the firm’s e-
    mails.
    The district court disregarded the Morgan declaration
    because it did not describe his expert qualifications or how
    he reached his conclusions on unauthorized access. The
    court then granted summary judgment in favor of Kevin
    because Andrea “failed to show that the e-mails [Kevin]
    allegedly accessed were in ‘back up storage’ as defined by
    the SCA.”
    LEGAL STANDARD
    We review de novo a district court’s grant of summary
    judgment. Flores v. City of San Gabriel, 
    824 F.3d 890
    , 897
    (9th Cir. 2016). We review evidentiary rulings for an abuse
    of discretion “even when the rulings determine the outcome
    of a motion for summary judgment.” Domingo v. T.K.,
    
    289 F.3d 600
    , 605 (9th Cir. 2002).
    DISCUSSION
    We are presented with two questions: (1) Whether the
    district court abused its discretion by excluding the Morgan
    declaration; and (2) Whether there is evidence that Andrea’s
    e-mails were in “electronic storage” within the meaning of
    the SCA. We answer both in the affirmative.
    I. Evidentiary Ruling
    We reverse in part the district court’s exclusion of the
    Morgan declaration because it was an abuse of discretion to
    6                     CLARE V. CLARE
    disregard Morgan’s personal knowledge about Andrea’s e-
    mail storage. The declaration describes the law firm’s
    storage practices as follows:
    With regards to the manner in which the
    firm’s e-mail accounts, calendars, and
    contacts are stored in Exchange, like all the
    firm’s computer/data systems, we maintain a
    private local server which is protected by
    firewall for the firm’s security. . . . [T]he
    firm’s Microsoft Exchange email service is
    owned by the law firm, hosted by Microsoft,
    but all the email accounts and security
    controls are managed exclusively by
    Teknologize [Morgan’s IT company].
    According to Morgan, the firm’s e-mails are “regularly
    downloaded and stored for both security and backup
    protection” on the private server paid for by the firm and
    maintained by the IT company.
    This evidence, which is based on Morgan’s personal
    knowledge, does not require expert qualification. As a result
    of his employment with the IT company that services
    Andrea’s law firm, Morgan is aware of the private server his
    company maintains for storage of the law firm’s e-mails and
    other materials. The information he provides in paragraphs
    five and six is far from technical. Instead, Morgan offers lay
    witness evidence. A plumber may not be qualified to
    describe the inner workings of a garbage disposal but can
    certainly observe the presence of such a unit in a particular
    customer’s sink. Here, Morgan’s description of the
    existence of a backup drive on the law firm’s computer
    system creates a genuine dispute of material fact on the
    CLARE V. CLARE                             7
    narrow issue that formed the basis of the district court’s
    summary judgment ruling. 1
    II. Summary Judgment Ruling
    A. The SCA and Backup Storage
    In the SCA, Congress created a private cause of action
    against one who “intentionally accesses without
    authorization [or intentionally exceeds an authorization to
    access] a facility through which an electronic
    communication service is provided . . . and thereby obtains,
    alters, or prevents authorized access to a wire or electronic
    communication while it is in electronic storage in such
    system.” 
    18 U.S.C. §§ 2701
    (a)(1), 2707(a). “[E]lectronic
    storage” is: “(A) any temporary, intermediate storage of a
    wire or electronic communication incidental to the electronic
    transmission thereof; and (B) any storage of such
    communication by an electronic communication service for
    purposes of backup protection of such communication[.]”
    
    18 U.S.C. § 2510
    (17), incorporated by 
    18 U.S.C. § 2711
    (1).
    We have provided guidance on what it means to store
    messages “for purposes of backup protection” under
    subsection (B) of the SCA. See Theofel v. Farey-Jones,
    
    359 F.3d 1066
    , 1075 (9th Cir. 2004). The defendants there
    accessed the plaintiffs’ e-mails using a “patently unlawful”
    subpoena to their internet service provider (ISP). 
    Id.
    at 1071–72 (quoting the district court). The district court
    dismissed the SCA claim, and we reversed. 
    Id.
     at 1072–77.
    1
    We need not address the district court’s ruling with respect to
    Morgan’s expert opinions on the outside access into Andrea’s Microsoft
    Exchange account in 2017 and 2018 because the lay aspects of the
    declaration make summary judgment inappropriate.
    8                     CLARE V. CLARE
    As relevant here, we rejected the argument that the
    accessed messages were not in “electronic storage” within
    the meaning of the Act. 
    Id.
     at 1075–77. The plaintiffs’ e-
    mails, which remained on the ISP’s server post-delivery, “fit
    comfortably” within subsection (B). 
    Id. at 1075
    . They were
    stored “for purposes of backup protection” because an
    “obvious purpose” for storing a delivered message on an
    ISP’s server is to maintain a backup copy “in the event that
    the user needs to download it again.” 
    Id.
     We distinguished
    a user whose only storage was on a remote computing
    service, in which case the messages would not be stored for
    “backup purposes.” 
    Id. at 1077
    .
    B. Application
    Notwithstanding the complexities of the SCA and the
    greater complexities of modern technology, our discussion
    of subsection (B) in Theofel was based on a straightforward
    premise: for an e-mail to be stored “for purposes of backup
    protection,” there must be a second, backup copy of the
    message. See 
    id. at 1075, 1077
    . The Morgan declaration
    provides evidence of exactly that. Viewing the record in the
    light most favorable to Andrea, she stores her e-mails for
    backup purposes on both her Microsoft Exchange account
    and on the private server paid for by her firm and maintained
    by the IT company. Thus, the Morgan declaration creates a
    genuine dispute of material fact with respect to whether the
    e-mails Kevin accessed are entitled to protection under
    subsection (B) of the SCA.
    Neither party raises the minor distinction between this
    case and the facts of Theofel, namely that Kevin hacked into
    Andrea’s e-mail through Microsoft Exchange, the same
    point of access she uses. By contrast, in Theofel the
    defendants accessed the ISP’s copies of the plaintiffs’ e-
    mails rather than the copies downloaded onto the plaintiffs’
    CLARE V. CLARE                           9
    own devices. See 
    id. at 1075
    . We agree with the Fourth
    Circuit’s recent rejection of any distinction between the
    protection afforded to “service copies,” i.e., those
    immediately accessible to a user, and “storage copies,” i.e.,
    those less conveniently accessible. See Hately v. Watts,
    
    917 F.3d 770
    , 796 n.8 (4th Cir. 2019). Further, Andrea
    asserts that both copies of her e-mails are stored for purposes
    of backup protection; accordingly, both could be entitled
    protection under subsection (B). See 
    id.
     (“Neither the [SCA]
    nor its legislative history limits the scope of messages in
    ‘electronic storage’ under Subsection (B) to a single backup
    copy or type of backup copy.”). It is immaterial that Kevin
    accessed Andrea’s e-mails via the same platform she uses.
    Kevin asserts that Andrea cannot rely on the Morgan
    declaration to manufacture a dispute in light of her earlier
    declaration that her firm “does not store e-mail on a server
    in the office.” But the summary judgment standard requires
    us to resolve all disputes in favor of the non-moving party
    and therefore to credit fully the admissible portions of the
    Morgan declaration. Further, Andrea’s statement would not
    contradict the evidence in the declaration if discovery
    reveals that the firm’s private server is located somewhere
    other than its own office. 2
    We briefly address Andrea’s contention that her SCA
    claim should have survived summary judgment even without
    the Morgan declaration because she stores e-mails for
    backup purposes on her Microsoft Exchange account. Her
    argument begs a question that other courts have faced:
    whether e-mail messages maintained only on a web-based
    platform can fall within the purview of subsection (B). See,
    2
    The Morgan declaration does not indicate the location of the
    private server.
    10                   CLARE V. CLARE
    e.g., Hately, 917 F.3d at 790–97; Cline v. Reetz-Laiolo,
    
    329 F. Supp. 3d 1000
    , 1044 (N.D. Cal. 2018); Cheng v.
    Romo, No. 11-cv-10007, 
    2013 WL 6814691
    , at *3 (D. Mass.
    Dec. 20, 2013). We cannot answer this question today. Not
    only does the admissibility of Dan Morgan’s observations
    make it unnecessary, but the record before us entirely lacks
    information on Microsoft Exchange’s role or functioning,
    most critically its e-mail storage practices. See Hately,
    917 F.3d at 791–92 (detailing Google’s “redundant systems”
    manner of storing a single e-mail on multiple servers).
    Further, the parties have not adequately briefed whether the
    reasoning of cases like Hately is consistent with our
    observation in Theofel that “[a] remote computing service
    might be the only place a user stores his messages; in that
    case, the messages are not stored for backup purposes.” See
    Theofel, 
    359 F.3d at 1077
    .
    CONCLUSION
    We REVERSE in part the district court’s evidentiary
    ruling, REVERSE summary judgment on the SCA claim,
    and REMAND the case for further proceedings consistent
    with this opinion.
    REVERSED and REMANDED. Costs awarded to
    Appellant.
    

Document Info

Docket Number: 19-36039

Filed Date: 12/8/2020

Precedential Status: Precedential

Modified Date: 12/8/2020