Eleventh Circuit Determines Ex-Wife Reading Ex-Husband’s Work Emails Violated The Stored Communications Act

In Vista Marketing, LLC v. Burkett, No. 14–14068, 2016 WL 425165 (11th Cir. Feb. 4, 2016), the Eleventh Circuit found that the defendant violated the Stored Communications Act, 18 U.S.C. §§ 2701–2712 (2012) (SCA) by accessing her ex-husbands work email account. The defendant accessed the email account in an attempt to find evidence her husband was hiding assets in their ongoing divorce. Using the emails she obtained, the defendant received a favorable decision by the divorce court, who found that her husband “[c]onspired to secrete and dissipate assets.” Burkett, 2016 WL 425165, at *3.

Subsequently, the ex-husband’s company, Vista Marketing, LLC, sued the defendant alleging a violation of the SCA by accessing the email account. In the district court, the jury found the defendant did in fact violate the SCA, however, it did not award any damages. Vista appealed to the district judge, who awarded a modest amount in statutory damages. Vista then appealed to the Eleventh Circuit for punitive damages, increased statutory damages, and attorney’s fees.

The Eleventh Circuit considered five issues: 1) if the defendant accessed an electronic communication while it was in electronic storage under the SCA; 2) whether statutory damages were appropriate; 3) whether the jury instruction was proper; 4) if Vista was entitled to punitive damages; and 5) whether the district court erred in not awarding punitive damages and attorney’s fees.

First, the defendant argued that she did not violate the SCA because she did not use a facility where a communication service was provided or access emails not in electronic storage at the time of access. More basically, the emails that she read are only in electronic storage, required elements. In other words, she only looked at previously opened emails, which would not violate the SCA. However, the court found the defendant’s argument moot because at trial the defendant admitted to opening at least one unopened email. The court reasoned that it made no difference to the judgment of the issue whether she violated the SCA once or 450 times. Id. at *19.

Second, both parties challenged the district court’s application of the SCA’s damages provision. The plaintiff argued that the statute guaranteed at least $1,000 for each violation, while the defendant contended that statutory damages can only be awarded upon a finding of actual damages. The court agreed with the defendant because § 2701(c) uses the language “person entitled to recover.” The court found this language required a determination of actual damages before statutory damages may be awarded.

Third, the court found the jury instructions did not prejudice the defendant.

Fourth, the court found that awarding Vista with punitive damages would directly conflict with the jury’s express finding that $0 in punitives should be awarded to Vista. The court reasoned that no case law supports such a contradiction of the jury’s finding and the SCA makes the award of punitives discretionary.

Finally, the awarding of attorney’s fees is similarly under the discretion of the district court. Section 2701(c) states that attorney’s fees “may” be awarded, and the courts finding could only be reversed if there was an abuse of discretion. Id. at **56–57.

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