Lazette v. Kulmatycki

• Decision Date: 05 June 2013
• Docket Number: Case No. 3:12CV2416.
• Parties: Sandi LAZETTE, Plaintiff v. Chris KULMATYCKI, et al., Defendant.
• Court: U.S. District Court — Northern District of Ohio

949 F.Supp.2d 748

Sandi LAZETTE, Plaintiff

v.Chris KULMATYCKI, et al., Defendant.

Case No. 3:12CV2416.

United States District Court,

N.D. Ohio,

Western Division.

June 5, 2013.

Sarah A. McHugh, Emily C. Zillgitt, Maloney, McHugh & Kolodgy, Toledo, OH, for Plaintiff.

James B. Niehaus, Frantz Ward, Cleveland, OH, for Defendant.

ORDER

JAMES G. CARR, Senior District Judge.

This is a suit by Sandi Lazette, a former employee of the defendant Cellco Partnership,d/b/a Verizon Wireless (Verizon), and her supervisor, defendant Kulmatycki. The gravamen of the action is that, after plaintiff left Verizon's employee and returned her company-issued blackberry (which she used and refers to in her complaint as her “phone”), Kulmatycki, during the ensuing eighteen months, read without her knowledge or authorization 48,000 e-mails sent to plaintiff's personal g-mail account. In addition, plaintiff alleges Kulmatycki disclosed the contents of some of the e-mails to others.

This alleged conduct gives rise to five claims: 1) violation of the Stored Communications Act (SCA), 18 U.S.C. § 2701 et seq.;¹ 2) violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (Title III), 18 U.S.C. § 2510 et seq;² 3) Ohio common law invasion of privacy/seclusion; 4) civil recover for violation of O.R.C. § 2913.04(B); ³ and 5) Ohio common law intentional infliction of emotional distress.

Pending is defendants' motion to dismiss. (Doc. 5). For the reasons that follow, I deny the motion in part and grant it in part.

Background

According to the complaint, the factual allegations of which I take as true, Verizon provided the blackberry for plaintiff's use. She was told that she could use the company-issued phone for personal e-mail. She had an account with g-mail, though she believed she had deleted that account from the phone before giving it to Kulmatycki in September, 2010. She understood that Verizon would “recycle” the phone for use by another employee.

In May, 2012, plaintiff learned that Kulmatycki, rather than deleting her g-mail account, had been accessing her g-mail account for a period of eighteen months. In addition, Kulmatycki, on information and belief, had disclosed the contents of the e-mails he had accessed.

Plaintiff neither consented to nor authorized Kulmatycki's surreptitious reading of her personal e-mails. His actions were within the scope and course of his employment with Verizon.

Once plaintiff was aware of Kulmatycki's actions, she changed her password to prevent further access. Before she did so, he had accessed 48,000 e-mails in plaintiff's g-mail account. Among the contents of the accessed e-mails were communications about plaintiff's family, career, financials, health, and other personal matters.

Kulmatycki's conduct was knowing, intentional, willful, wanton, malicious, and fraudulent. He undertook his actions to benefit Verizon and further his own interests.⁴

Discussion

1. Stored Communications Act

Section 2701 of the SCA states in pertinent part:

(a) Offense.—Except as provided in subsection (c) of this section whoever—

(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or

(2) intentionally exceeds an authorization to access that facility;

and thereby obtains ... access to a wire or electronic communication while it is in electronic storage in such system shall be punished as provided in subsection (b) of this section.

* * * * * *

(c) Exceptions.—Subsection (a) of this section does not apply with respect to conduct authorized—

(1) by the person or entity providing a wire or electronic communications service; .... ⁵

Section 2707 of the SCA provides in pertinent part:

(a) Cause of action.—... [A]ny ... person aggrieved by any violation of this chapter in which the conduct constituting the violation is engaged in with a knowing or intentional state of mind may, in a civil action, recover from the person or entity, other than the United States, which engaged in that violation such relief as may be appropriate.

Relief available under this provision includes equitable relief, damages, and reasonable attorneys' fees and litigation costs. 18 U.S.C. § 2707(b).

The SCA incorporates the definition of “electronic storage” from Title III:

(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).

The defendants assert that Kulmatycki's opening and reading 48,000 of plaintiff's e-mails during an eighteen month period did not violate the SCA. In making this argument, they contend:

• The relief plaintiff seeks is not available because the legislative history shows that Congress aimed the SCA at “high-tech” criminals, such as computer hackers;

• Kulmatycki had authority to access plaintiff's e-mails;

• Kulmatycki's access did not occur via “a facility through which an electronic communication service is provided” other than the company owned blackberry;

• The e-mails were not in electronic storage when Kulmatycki read them; • Verizon may be exempt from the SCA under § 2701(c)(1), which states that the person or entity providing an electronic communications service is exempt from the Act, because the complaint does not make clear that plaintiff's g-mail account was separate from her company account.⁶

a. Whether the SCA Applies

Defendants' reading of congressional intent and the case law with regard to whether the SCA prohibits unauthorized access to another person's g-mail account is not persuasive.

In support of their claim that Congress intended the SCA only to reach computer hackers, not someone who reads another person's e-mails without his or her knowledge, defendants cite Int'l Ass'n of Machinists & Aero. Workers v. Werner–Matsuda, 390 F.Supp.2d 479, 495 (D.Md.2005).

In that case, the court stated, “Federal courts interpreting these statutes have noted that their ‘general purpose ... was to create a cause of action against “computer hackers ( e.g., electronic trespassers).” ’ ” (citing Sherman & Co. v. Salton Maxim Housewares, Inc., 94 F.Supp.2d 817, 820 (E.D.Mich.2000) (quoting State Wide Photocopy Corp. v. Tokai Fin. Servs., Inc., 909 F.Supp. 137, 145 (S.D.N.Y.1995))).

However, the case from which the court in Machinists derived its comment about the “general purpose” of the SCA, stated less restrictively: “generally, it appears that the ECPA was primarily designed to provide a cause of action against computer hackers, ( i.e., electronic trespassers.” State Wide Photocopy, Corp. v. Tokai Financial Services, Inc. 909 F.Supp. 137, 145 (S.D.N.Y.1995) (emphasis supplied)). “Primarily” does not mean “exclusively,” despite defendants' assertion that Kulmatycki's conduct is outside the statute's scope because he was not a “hacker” in the conventional sense. ⁷

Moreover, the case from which Machinists drew its specific language, Sherman & Co. v. Salton Maxim Housewares, Inc., 94 F.Supp.2d 817 (E.D.Mich.2000), also stated expressly, “The provisions of section 2701 of the Act apply to persons or entities in general and prohibit intentional accessing of electronic data without authorization or in excess of authorization.” See also Educational Testing Service v. Stanley H. Kaplan, Educational Center, Ltd. 965 F.Supp. 731, 740 (D.Md.1997) (“it appears evident that the sort of trespasses to which the Stored Communications Act applies are those in which the trespasser gains access to information to which he is not entitled to see”); Thayer Corp. v. Reed, 2011 WL 2682723, *7 (D.Me.) (“The statute does not limit liability to ‘hackers.’ ”).

The prohibitions of the SCA apply to the defendants.

b. Authority to Access Plaintiff's E–Mails

Defendants argue that Kulmatycki had authority to access plaintiff's g-mail account because: 1) he used a company-owned blackberry; 2) he did not access a “facility,” as the statute uses that term; and 3) plaintiff authorized Kulmatycki's access because she had: a) not expressly told him not to read her e-mails; and b) implicitly consented to his access by not deleting her g-mail account.

i. Use of Company–Owned Device/Authorization

Defendants claim that, because Kulmatycki indisputably had authority to use the blackberry on which others were sending e-mails to the plaintiff, he could use it to access those e-mails. In support of this contention, among the cases defendants cite are ones where one family member had accessed e-mails sent to another family member on a family computer. White v. White, 344 N.J.Super. 211, 781 A.2d 85, 90–91 (2001); State v. Poling, 160 Ohio Misc.2d 84, 938 N.E.2d 1118, 1123 (2010).

Those cases are readily distinguishable, as they involved joint users of a shared computer. Here, there never was joint use between plaintiff and Kulmatycki. Indeed, when Kulmatycki accessed e-mail sent to plaintiff, she was not able to use the blackberry to do likewise.

Other cases which the defendants cite are similarly inapposite. In Lasco Foods, Inc. v. Hall and Shaw Sales, Marketing & Consulting, LLC, 600 F.Supp.2d 1045, 1050 (E.D.Mo.2009), the plaintiff expressly acknowledged the defendants, among whom were former company employees, had “virtually unrestricted access to its information.” In other words, at the time the individual defendants had accessed the databases, the plaintiff knowingly, and with its approval, permitted them to do so.

Here, plaintiff neither knew nor approved of Kulmatycki's accessing her e-mails.⁸

In Sherman, supra, after a former employee sued the defendant for breach of contract, the defendant company sought leave to counter-sue for a violation of the SCA. Its proposed countercomplaint asserted the former employee had used a computer and a company access code, which one of the company's customers had provided, to access sales data on the customer's...