Quon v. Arch Wireless Operating Co., Inc.

• Decision Date: 15 August 2006
• Docket Number: No. EDCV 03-199 SGL.,EDCV 03-199 SGL.
• Parties: Jeff QUON, Jerilyn Quon, April Florio, Doreen Klein, and Steve Trujillo, Plaintiffs, v. ARCH WIRELESS OPERATING COMPANY, INC.; City of Ontario; Ontario Police Department; Lloyd Scharf, and Debbie Glenn, Defendants.
• Court: U.S. District Court — Central District of California

445 F.Supp.2d 1116

Jeff QUON, Jerilyn Quon, April Florio, Doreen Klein, and Steve Trujillo, Plaintiffs, v. ARCH WIRELESS OPERATING COMPANY, INC.; City of Ontario; Ontario Police Department; Lloyd Scharf, and Debbie Glenn, Defendants.

No. EDCV 03-199 SGL.

United States District Court, C.D. California.

August 15, 2006.

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Anthony Michael Snodgrass, Lackie & Dammeier, Michael David Lackie, Lackie & Dammeier, Michael A. Morguess, Lackie & Dammeier, Upland, CA, for Jeff Quon, Jerilyn Quon, April Florio, Doreen Klein Steve Trujillo, Roes 1 through 20 inclusive, Plaintiffs.

James L. Poth, Jones Day, Irvine, Jason Alan Cole, Schaffer Lax McNaughton and Chen, Los Angeles, CA, Richard J. Grabowski, Jones Day, Irvine, Stephen A. Lax, Schaffer Lax McNaughton & Chen, Los Angeles, CA, Dimitrios C. Rinos, Rinos & Martin, Laura L. Stephan, Rinos & Martin, Tustin, Bruce E Disenhouse, Kinkle Rodiger & Spriggs, Riverside, CA, for Arch Wireless Incorporated a Delaware Corporation, Ontario City of A Municipal Corporation, Lloyd Scharf Individually ans as Chief of Ontario Police Department, Debbie Glenn Individually and as a Sergeant of Ontario Police Department, Does 1 through 10 Inclusive, Defendants.

AMENDED ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT, AND DENYING PLAINTIFFS' MOTIONS FOR SUMMARY JUDGMENT¹

LARSON, District Judge.

What are the legal boundaries of an employee's privacy in this interconnected, electronic-communication age, one in which thoughts and ideas that would have been spoken personally and privately in ages past are now instantly text-messaged to friends and family via hand-held, computer-assisted electronic devices? It is precisely this question that is before the Court in the form of plaintiffs' motions for summary judgment and defendants' crossmotions for summary judgment. After reviewing the pleadings and listening to the parties' oral arguments at multiple hearings on the instant motions, the Court, for the reasons set forth below, GRANTS IN PART and DENIES IN PART defendants' motions for summary judgment and DENIES plaintiffs' motions for summary judgment.

Given that the applicable legal standard for considering such motions has long past become firmly established, the Court will only briefly remind the reader: Summary judgment can be granted only where there is no genuine issue as to any material fact and where the movant is entitled to judgment as a matter of law; in determining whether these conditions are met the record must be viewed in the light most favorable to the party opposing the motion, with the court indulging in all inferences favorable to that party. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-56, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Brookside Assocs. v. Rifkin, 49 F.3d 490, 492-93 (9th Cir.1995).

This case has its genesis in gross malfeasance which, no one disputes, took place in the Ontario Police Department's dispatch center in the early part of this decade. Sally Bors, a dispatcher, was under investigation in September, 2002, for providing information to her boyfriend Mark Timbrell, who was a member of the Hell's Angels motorcycle gang, regarding police investigative activity about the Hell's Angels in general and Timbrell in particular. A sting operation was performed to ferret out this corruption on September 16, 2002. A narcotics officer called in the license plate of a known Hell's Angels member to Bors. Rather than contacting the Hell's Angels member directly, Bors used her pager to text message another dispatcher, Angela Santos, requesting that she contact the Hell's Angels member and let him know he was being followed by a narcotics agent. After doing so, Santos immediately contacted yet another dispatcher, April Florio, and informed her of what she had done for Bors. Florio then contacted fellow dispatcher Doreen Klein about Bors/Santos' activities. Neither Florio nor Klein reported this malfeasance to any personnel, supervisory or otherwise, in the police department.

When Klein and Florio arrived at the dispatch center the following day, they were asked to report to their supervisor's office to answer some questions. When they arrived in the supervisor's office, internal affairs Sergeant Deborah Glenn asked them to hand over their personal cell phones and pagers before the questioning would commence. Two weeks earlier the department had issued a memorandum to those working in the dispatch center that, "[e]ffective immediately and until further notice, use of all cell phones and pagers within the Dispatch Center will be prohibited. On duty personnel shall leave pagers and cell phones in their lockers and check them on their breaks." (Joint Defs. Exhibits in Support Mot. Summ. J., Ex. EE). The pagers and cell phones were kept on a table in an interrogation room where Florio and Klein were separately interviewed by internal affairs personnel. The reason proffered for the seizure of the duo's personal pagers and cell phones was to "preclude [them] ... from covertly communicating with one another before, during, or after each of their interviews" so they could not coordinate their stories. (Defs' Mot. Summ. J. at 43; Pls' Index of Exhibits in Opp., Ex. G at 44). The pagers and cell phones were apparently returned to Klein and Florio following the interrogation. Florio and Klein alleged that during the interrogation, Sergeant Glenn examined and read information contained on their cell phones and pagers, including text messages, names, phone numbers, and street addresses. (Second Am. Compl. ¶ 72). This allegation in the complaint, however, was never confirmed during the subsequent discovery conducted in this case.

Klein, Florio, and Santos were each interviewed in turn by internal affairs personnel. During their interviews, Klein and Florio "played dumb" with respect to the malfeasance in the dispatch center. When Santos was interviewed, however, she confessed to her involvement, informing internal affairs personnel that, at the behest of Bors, she had contacted a Hell's Angels member and advised him that he was being followed by police, and that she also relayed that information to Florio.

On the next day, September 18, 2002, Florio and Klein were re-interviewed by internal affairs personnel. Only when confronted with Santos' confession did each in turn acknowledge that they too were aware that Santos had contacted a Hell's Angels member to inform him that he was being followed by the police. Klein and Florio were later terminated from their positions on account of their misconduct.

In the midst of these developments, a separate event took place that would later become embroiled in the dispatch center investigation. The event involved the department's audit of the text messages sent to and sent from police sergeant Jeff Quon's city-issued pager for the period of August 1 to September 30, 2002. The connection between the Quon pager audit and the Bors investigation arises in part from the fact that, at the time, Jeff Quon, who was married to Jerilyn Quon, another Ontario police officer, was having an extramartial affair with Florio. Some prefatory remarks at this point concerning the city-issued pagers is warranted.

In October, 2001, the City of Ontario entered into a contract with Arch Wireless Operating Company, Inc. ("Arch Wireless"), subscribing for the provision of two-way alphanumeric text-messaging pagers for its employees as well as other wireless communication services incident to the use of such pagers. As part of the contract, the City paid Arch Wireless a monthly subscription rate keyed to each pager being allotted 25,000 characters—be it letters, numbers, or other symbols—per month, with the City having to pay extra for any overages. The City issued such a pager to members of the police department's SWAT team, which included plaintiffs Jeff Quon and Steve Trujillo, both of whom were sergeants with the City's SWAT team. The issuance of such city-owned pagers to members of the SWAT team was meant to enable better coordination and a more rapid and effective response to emergencies by providing nearly instantaneous situational awareness to the team as to the other members whereabouts.

Text messages sent on the pagers operate as follows over the Arch Wireless network:

The message leaves the originating pager via a radio frequency transmission. That transmission is received by any one of many receiving stations, which are owned by Arch Wireless. Depending on the location of the receiving station, the message is then entered into the Arch Wireless computer network either by wire transmission or via satellite by another radio frequency transmission. Once in the Arch Wireless computer network, the message is sent to the Arch Wireless computer server. Once in the server, a copy of the message is archived. The message is also stored in the server system, for a period of up to 72 hours, until the recipient pager is ready to receive delivery of the text message. The recipient pager is ready to receive delivery of a message when it is both activated and located in an Arch Wireless service area. Once the recipient pager is able to receive delivery of the text message, the Arch Wireless server retrieves the stored message and sends it, via wire or radio frequency transmission, to the transmitting station closest to the recipient pager. The transmitting stations are owned by Arch Wireless. The message is then sent from the transmitting station via a radio frequency transmission, to the recipient pager where it can be read by the user of the recipient pager.

(Decl. Steven Niehamp ¶¶ 3-7).

As part of its provision of computer desktop equipment to its personnel, the Ontario police department had all of its employees review and sign a written statement of the department's policy concerning use of this equipment. The...