Epstein v. Epstein

• Decision Date: 14 December 2016
• Docket Number: No. 15-2076,15-2076
• Citation: 843 F.3d 1147
• Parties: Barry EPSTEIN, Plaintiff–Appellant, v. Paula EPSTEIN and Jay Frank, Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

843 F.3d 1147

Barry EPSTEIN, Plaintiff–Appellant,

v.Paula EPSTEIN and Jay Frank, Defendants–Appellees.

No. 15-2076

United States Court of Appeals, Seventh Circuit.

Argued December 10, 2015

Decided December 14, 2016

Rehearing Denied January 3, 2017

Nejla Lane, Attorney, Lane Keyfli Law, Ltd., Chicago, IL, for Plaintiff–Appellant.

Scott A. Schaefers, Attorney, Brotschul Potts, Chicago, IL, for Paula Epstein.

Norman J. Barry, Jr., Attorney, Karen Kies DeGrand, Attorney, Donohue, Brown, Mathewson & Smyth, Chicago, IL, for Jay Frank.

Before Posner, Manio n, and Sykes, Circuit Judges.

Sykes, Circuit Judge.

Barry Epstein sued his estranged wife, Paula, alleging that she violated the federal Wiretapping and Electronic Surveillance Act by intercepting his emails. The action arises from the couple's acrimonious divorce. Paula accused Barry of serial infidelity, so in discovery Barry asked her for all documents related to that accusation. Paula complied and produced copies of incriminating emails between Barry and several other women. Her discovery response spawned this satellite litigation (the divorce action is still pending). Barry alleges that Paula violated the Wiretap Act by surreptitiously placing an auto-forwarding "rule" on his email accounts that automatically forwarded the messages on his email client to her.¹ He also claims that Paula's divorce lawyer violated the Act by "disclosing" the intercepted emails in response to his discovery request. The district judge dismissed the suit on the pleadings.

We affirm in part and reverse in part. The complaint doesn't state a Wiretap Act claim against Paula's lawyer. The lawyer can't be liable for disclosing Barry's own emails to him in response to his own discovery request. The allegations against Paula, on the other hand, technically fall within the language of the Act, though Congress probably didn't anticipate its use as a tactical weapon in a divorce proceeding.

I. Background

We take the following factual account from the amended complaint, accepting it as true for present purposes. Paula and Barry Epstein married in 1970. In 2011 Paula filed for divorce in Cook County Circuit Court, accusing her husband of infidelity. The divorce case has dragged on since then and remains unresolved. During discovery Barry's lawyer sent Paula's lawyer a document request asking for production of "[a ]ny 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."

Jay Frank was Paula's lawyer. In response to this document request, he produced (among other things) 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. This came as a shock to Barry; he inferred from this discovery response that Paula must have secretly placed a "rule" on his email accounts automatically forwarding his messages to her.

With the divorce action still ongoing, Barry filed this federal suit against Paula and Frank pursuant to 18 U.S.C. § 2520, which authorizes civil actions against persons who violate the Wiretap Act. The complaint alleges that Paula unlawfully intercepted, disclosed, and used Barry's emails in violation of the Act, and that Frank violated the Act by unlawfully disclosing and using the emails in the divorce proceeding.² Copies of some of the intercepted emails were attached to the complaint as exhibits.

Paula and Frank separately moved to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Both argued that intercepting an email doesn't violate the Wiretap Act unless the acquisition occurs contemporaneously with the email's transmission. The emails attached to the complaint bear date and time markings showing that they may not have been intercepted contemporaneously with their transmission. The defendants argued that this date and time information was enough by itself to defeat Barry's Wiretap Act claim. Frank also argued that he can't 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 judge agreed with these arguments and dismissed the Wiretap Act claims against both defendants.

II. Discussion

The Wiretap Act makes it unlawful to "intentionally intercept[ ] [or] endeavor [ ] to intercept ... any wire, oral, or electronic communication." 18 U.S.C. § 2511(1)(a). The Act also prohibits the intentional "disclos[ure]" or "use [ ]" of the contents of an unlawfully intercepted electronic communication. Id . § 2511(1)(c), (d). "[I]ntercept" is defined as "the aural or other acquisition of the contents of any wire, electronic, or oral communication." Id . § 2510(4). "[E]lectronic communication," in turn, is "any transfer of signs ... of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system." Id. § 2510(12).

The parties' briefs are largely devoted to a debate about whether the Wiretap Act requires a "contemporaneous" interception of an electronic communication—that is, an interception that occurs during transmission rather than after the electronic message has "come to rest on a computer system." United States v. Szymuszkiewicz , 622 F.3d 701, 703 (7th Cir. 2010). Several circuits have held that the Wiretap Act covers only contemporaneous interceptions—understood as the act of acquiring an electronic communication in transit—rather than the acquisition of stored electronic communications, which is addressed by the Stored Communications Act.

Fraser v. Nationwide Mut. Ins. Co. , 352 F.3d 107, 113 (3d Cir. 2003) ; United States v. Steiger , 318 F.3d 1039, 1047 (11th Cir. 2003) ; Konop v. Hawaiian Airlines, Inc. , 302 F.3d 868 (9th Cir. 2002) ; Steve Jackson Games, Inc. v. Secret Serv. , 36 F.3d 457 (5th Cir. 1994). We noted this trend in Szymuszkiewicz but had no occasion to decide whether we agreed. 622 F.3d at 705–06. We do not need to take a position today. Even if the Wiretap Act covers only contemporaneous interceptions, Barry has stated a Wiretap Act claim against Paula, and dismissal of the claim against her was error.

The amended complaint alleges that Paula's interception of his emails "was contemporaneous with the transmission insofar as the electronic messages destined for [Barry] were forwarded to [Paula] at the same time they were received by [Barry's email] servers." The defendants insist that the emails attached to the complaint decisively show that the interception was not contemporaneous.

A plaintiff can "plead himself out of court by pleading facts that show that he has no legal claim." Atkins v. City of Chicago , 631 F.3d 823, 832 (7th Cir. 2011). This can occur when the complaint includes "facts that establish an impenetrable defense to its claims." Hecker v. Deere & Co. , 556 F.3d 575, 588 (7th Cir. 2009) (quoting Tamayo v. Blagojevich , 526 F.3d 1074, 1086 (7th Cir. 2008) ). Put slightly differently, "[a] plaintiff pleads himself out of court when it would be necessary to contradict the complaint in order to prevail on the merits." Id . Although the defendants strenuously argue otherwise, the emails attached to the complaint do not conclusively defeat Barry's allegation that Paula intercepted his emails contemporaneously with their transmission.

The emails appear to come from one of Paula's email clients. Those that were sent from Barry's account to the other women show the time his email client sent the message; the emails he received from the other women show the time his email client received the message. Each email also shows the time Paula's email client received the forwarded message from Barry's account.³ The district judge read these "sent" and "received" markings in the defendants' favor, noting that there are gaps between the time Barry sent or received an email and the time Paula received the forwarded email. The judge observed that "[t]he shortest interval between an original email[ ] and the email forwarding it to Paula's account[ ] is approximately three hours." Although this reasoning seems sensible on its face, there are three independently sufficient reasons why the time markings on the emails do not establish an "impenetrable defense" to the Wiretap Act claims.

First, the judge misunderstood when an interception occurs. He assumed that the time Paula's email client received the forwarded emails was the moment of interception. Although this interpretation of "interception" is understandable, we explained in Szymuszkiewicz that the interception of an email need not occur at the time the wrongdoer receives the email; in Szymuszkiewicz "[t]he copying at the server was the unlawful interception." 622 F.3d at 704. Because Barry's case was dismissed on the pleadings, we do not know how Paula's auto-forwarding rule worked. For example, we cannot tell if a server immediately copied Barry's emails—at which point the interception would be complete—even though Paula's email client may not have received them until later.

Second, the judge mistakenly conflated the emails Barry received and those he sent . If we assume that the Wiretap Act prohibits only contemporaneous interceptions, the Act would apply to the acquisition of emails before they "cross[ ] the finish line of transmission," which happens when their intended recipient actually receives them. United States v. Councilman , 418 F.3d 67, 80 (1st Cir. 2005) (en banc).

Putting aside the general problem of determining precisely when an interception occurs, for the emails Barry received from the other women, it seems reasonable to compare the time Barry received the message and the time the email was successfully forwarded to Paula. But that logic doesn't apply to emails Barry sent to the other women. The time markings on those emails tell us nothing about when transmission of the emails was...