Clare v. Clare, No. 19-36039 (9th Cir. 2020)
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A husband's unauthorized access into his wife's work emails—undoubtedly an invasion of her privacy—could also constitute a violation of the Stored Communications Act.
After wife and her law firm employer filed suit against husband and his divorce lawyer, the other parties resolved their claims and wife filed a second amended complaint alleging one cause of action against husband under the Act. The district court granted summary judgment for husband because wife failed to show that the e-mails husband allegedly accessed were in "back up storage" as defined by the Act.
The Ninth Circuit reversed the district court's exclusion of a declaration submitted by plaintiff, concluding that the district court abused its discretion in disregarding the declarant's personal knowledge about wife's e-mail storage. The panel explained that the evidence does not require expert qualification where the declarant was employed with the IT company that services wife's law firm and the information he provides is far from technical.
The panel held that the Act 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. In this case, the declaration submitted by plaintiff created a genuine dispute of material fact with respect to whether the e-mails defendant accessed were entitled to protection under the Act. Finally, the panel agreed with the Fourth Circuit's recent rejection of any distinction between the protection afforded to "service copies," meaning those less conveniently accessible. The panel reversed the district court's grant of summary judgment and remanded for further proceedings.
Court Description: 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 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.
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