Wesley College v. Pitts

• Decision Date: 11 August 1997
• Docket Number: Civil Action No. 95-536 MMS.
• Citation: 974 F.Supp. 375
• Parties: WESLEY COLLEGE, Plaintiff, v. Leslie PITTS, Bettina Ferguson, and Keith Hudson, Defendants.
• Court: U.S. District Court — District of Delaware

974 F.Supp. 375

WESLEY COLLEGE, Plaintiff, v. Leslie PITTS, Bettina Ferguson, and Keith Hudson, Defendants.

Civil Action No. 95-536 MMS.

United States District Court, D. Delaware.

Argued May 20, 1997.

Decided August 11, 1997.

COPYRIGHT MATERIAL OMITTED

Charlene D. Davis, Daniel P. Bennett, Bayard, Handelman and Murdoch, P.A., Wilmington, DE (Charles P. Roberts III, Haynsworth, Baldwin, Johnson and Greaves, P.A., Greensboro, NC, of counsel), for plaintiff.

Frederick L. Cottrell, Luke E. Dembosky, Richards, Layton & Finger, Wilmington, DE (Jeffrey Grossman, and Stuart Race, Fine and Staud, Philadelphia, PA, of counsel), for defendant Pitts.

Bettina Ferguson, Dover, DE, defendant pro se.

Michael J. Malkiewicz, Barros, McNamara, Scanlon, Malkiewicz & Taylor, P.A., Dover, DE, for defendant Hudson.

OPINION

MURRAY M. SCHWARTZ, Senior District Judge.

I. INTRODUCTION

Plaintiff Wesley College ("Wesley") filed this civil suit against three defendants, Leslie Pitts, Bettina Ferguson, and Keith Hudson, alleging violations of Title I and Title II of the Electronic Communications Privacy Act of 1986 ("ECPA") and DEL. CODE tit. 11, §§ 932 and 935. While these are criminal statutes, civil actions are permitted under 18 U.S.C. §§ 2520, 2707, and DEL. CODE tit. 11, § 939, respectively. Jurisdiction is invoked pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1367(a).

Ferguson and Hudson have brought motions for summary judgment on all of Wesley's claims. For the following reasons, their motions for summary judgment will be granted.

II. FACTUAL BACKGROUND

A. The E-mail that Kept Coming Back

1. The Chancery Court Lawsuit and its Revelations

This case had its genesis over six years ago, in March of 1991, when Keith Hudson, an English teacher at Wesley College of Dover, Delaware, was denied tenure. Docket Item ("D.I.") 113 at B-3, ¶ 7. Instead, he was offered a terminal contract, which ended in May of 1992. After his contract expired, Hudson filed suit for breach of contract against Wesley, its Board of Trustees and Reed M. Stewart ("Stewart"), the former president of Wesley, in the Delaware Chancery Court.

Hudson was not deposed until June of 1995. His deposition began routinely enough; then Hudson was asked, by his attorney, if he was "familiar with any communications with anyone that worked or previously worked in the computer center of Wesley College relating to" an advertisement for a position as an English teacher that Wesley College had placed in a trade journal. Hudson's reply:

Yes, I am. It was — I was told by a current faculty member at Wesley that Leslie Pitts, who worked in the computer center and has subsequently left Wesley, had said that he had seen an e-mail from the president, which directed the English department when they were advertising for an English position not to advertise it in such a way that it would suit me.

D.I. 113 at B-139. After further questioning by Wesley's counsel, Hudson revealed that name of the "current faculty member": Bettina Ferguson, who taught paralegal studies at Wesley and allegedly had been told by Pitts about the e-mail. Id.

2. Wesley's Computer System

At this point, Wesley became concerned about security leaks in its computer system. D.I. 112 at 7. Wesley uses a networked computer system ("NCS"). The NCS is anchored by a mainframe computer, which, as Wesley puts it, "is utilized to transmit and store virtually all of the information and knowledge on which the College operates." D.I. 95 at ¶ 8. The mainframe is located in the computer center in the basement of the campus library. D.I. 113 at 1, ¶ 2. The computer center is protected by a security system and access to the computer center is limited. D.I. 95 at ¶ 8. So-called "dumb" terminals are connected to and communicate with the mainframe and are available throughout the Wesley campus; the terminals are "dumb" because they do not store information independently.

A user must have an account number and a password to utilize one of the dumb terminals; passwords are assigned by computer center personnel to faculty members, administrators, and students. D.I. 95 at 29. One of the services the terminals offered was private electronic mail ("e-mail"). Stewart, the former president of Wesley, was a particularly avid user of e-mail; he sent over 1000 e-mails a month. D.I. 113 at 2, ¶ 4.

3. The Unmarked Envelopes

Wesley's concerns about leaks in the NCS — specifically, the e-mail system — were heightened when on July 17, 1995, a little less than a month after Hudson's deposition, Stewart received an unmarked envelope at his home. The envelope contained hard copies of three private e-mails authored by Stewart. D.I. 113 at 7, ¶ 3. One e-mail was dated February 15, 1995 and addressed matters regarding Hudson's suit against Wesley. So, too, another e-mail dated August 16, 1994. Id. The third e-mail, dated February 22, 1995, concerned new hiring. Id. The envelope also included a headline torn from the Delaware State News, a local newspaper; the flip side of the headline carried a portion of the Obituaries section of the paper. Id.¹

Four days later, on July 21, 1995, Stewart was greeted with another unmarked envelope containing two more private e-mails, this time sent through campus mail. Id. at B-8, ¶ 4. Each e-mail concerned a truck that Stewart had purchased from Wesley. Id. One e-mail was dated August 4, 1991, and the other was dated December 9, 1991. Id.

Now convinced that its computer system had been infiltrated, Wesley filed suit against Pitts, Ferguson, and Hudson on September 1, 1995. D.I. 1. Pitts and Hudson were deposed on October 1, 1996; approximately one day later, Stewart received yet another envelope through campus mail. D.I. 113 at 8, ¶ 5. This envelope contained another copy of the December 9, 1991 e-mail which had been sent to Stewart on July 21, 1995. Id. On the back of this e-mail, a typed message warned, "You are falling apart. See there are more." Id. at 21. Two days later, Ferguson and another Wesley professor, Linda Pelzer, were deposed.

B. The Suspects

1. Leslie Pitts

Pitts was employed as a computer programmer by Wesley from 1993 until his discharge in March of 1995. D.I. 113 at 26. As a computer programmer, Pitts had the capability to obtain any information, "in one form or another," that was on the mainframe. Id. at 35. In his deposition, Pitts testified that Stewart often mistakenly printed out e-mails in the computer center, where Pitts worked, instead of his office. Id. at 39. Pitts said he returned some e-mails to Stewart's assistant; others he placed in a folder beside the printer in the computer center. Id. Stewart has flatly denied printing his e-mails. In fact, while Stewart was proficient at composing e-mails, he was yet an interactive novice in some respects; the print command on his computer remained a mystery to him. D.I. 113 at 5, ¶ 14.

After he was terminated, Pitts took the folder home. Id. at 38, 45. Dover police found the folder in a search of Pitts' house; most, if not all, of the e-mails in the folder mentioned Pitts by name. Id. at 60. If Pitts is to be believed, this is pure coincidence; he denied reading any of the e-mails until after his termination. Id. at 61-62. The e-mails indicate the dates and times they were created, but not the times they were printed. Several of the e-mails were created outside Pitt's working hours of 8:30 a.m. to 4:30 p.m. See id. at 70-76.

In his deposition, Pitts admitted he sent to Stewart at his home an unmarked envelope containing one e-mail and a headline from the Delaware State News.² This e-mail, Pitts explained, was one he "needed to return to him [Stewart] because of its content." Id. at 48. Pitts further admitted he sent a copy of the same e-mail to Linda Pelzer, a Wesley professor in the English department, because she was mentioned in it. Id. at 53. He denied any knowledge of the e-mails sent to Stewart through the campus mail, and denied discussing with Ferguson or Hudson any of the e-mails sent to Stewart or confiscated by the Dover police. Id. at 64-65.

2. Bettina Ferguson

Ferguson was a teacher in paralegal studies at Wesley from August 1991 until May 31, 1996.³ Ferguson never had an e-mail account on the NCS. D.I. 107 at 41-42. According to Ferguson, she knew of Pitts and his position at Wesley, but did not know him particularly well. D.I. 107 at 38. In fact, Ferguson stated she held what she "believed to be the overall faculty opinion about his [computer] skills; that they were not very good." D.I. 107 at 78. ¶ 6.

Sometime in March or April of 1995, Pitts approached Ferguson on a portico on the college center and requested a meeting with her. D.I. 107 at 35. Ferguson knew Pitts had been recently terminated and warned him she could not give him any legal advice. Id. Pitts persisted, however, and, about twenty minutes later, entered her office.

According to Ferguson, Pitts first told her he was having difficulty finding a lawyer who charged a reasonable fee. Ferguson replied that she could not help him with that. Id. Then, states Ferguson, Pitts told her how "stupid" the college was to fire him, because he "knew things." Id. He explained to Ferguson that his job entailed counseling Wesley faculty on use of the NCS. Consequently, he said, he "saw things" on the computer screens. Id. at 36. In particular, he said, he saw an e-mail on a computer screen while working with someone that was relevant to Hudson's lawsuit against Wesley. Id.

According to Ferguson, Pitts said he could not help but read the e-mail on the screen. Id. In Ferguson's words, Pitts "said — in fact, he showed how his eyes got big when he saw it [the e-mail], and that it said something about being careful how the English position was advertised because it might hurt the college in the Hudson case." Id. As Ferguson relates it, Pitts said "something about how hard it is to ignore something that's right in front of you." Id. at 78, ¶ 7. Without much further ado,...