Claims of Employer Spying on Privileged Email Proceed

Allegations that a man’s former employer broke state and federal laws by accessing his private email account and reading communications between him and his lawyer after he had been fired have survived summary judgment in federal court in Philadelphia.

U.S. District Judge Anita Brody of the Eastern District of Pennsylvania denied the motion for summary judgment on the issue of liability from Douglas Brooks, the plaintiff, and she denied the employer’s motion for summary judgment on all aspects except for the claims brought under the Computer Fraud and Abuse Act. Brooks hadn’t sufficiently demonstrated that he suffered loss as a result of the alleged computer fraud, according to the opinion.

Regarding all the remaining issues, brought under the federal Stored Communications Act and the corresponding Pennsylvania law, Brody held that there remained substantive issues of law.

“The parties have presented dueling forensic expert reports,” Brody said in Brooks v. AM Resorts.

In a footnote, the judge also disposed of Brooks’ argument that he should be granted summary judgment for AM Resorts’ spoliation of evidence.

According to the opinion, on March 4, 2010, Brooks was fired and, soon afterward, exchanged privileged emails with his lawyer. On March 21, his former supervisor, Javier Estelrich, emailed Brooks saying that AM Resorts’ lawyers would be in touch and attached the privileged emails between Brooks and his lawyers, according to the opinion.

While he was working at AM Resorts, Brooks had given his username and password for his personal Hotmail account since he had trouble accessing his work account, according to the opinion. Similarly, he had allowed his employer to install a program on his personal computer that would let it remotely access his desktop in order to diagnose problems.

Brooks alleges that AM Resorts went through those channels to read his privileged conversation with his lawyer. He hired an expert who drafted a report that concluded that was the case, based on IP addresses that accessed his email account. AM Resorts furnished the court with an expert report that concluded that wasn’t necessarily the case, since the IP address could have been dynamic, rather than static.

Under the Stored Communications Act, the SCA, an unauthorized party that accesses emails is liable, but not if the emails are downloaded and stored on a personal computer, according to the opinion.

AM Resorts characterized Brooks’ argument as alleging that it got a downloaded copy of the emails that was stored on his personal computer.

“While it is true that Brooks alleges that AM Resorts accessed his computer, Brooks has never alleged that AM Resorts obtained a downloaded copy of the privileged email exchange from his hard drive,” Brody said. “Rather, Brooks has maintained throughout this litigation that AM Resorts obtained the privileged email exchange by accessing his Microsoft Hotmail email account, an act that qualifies as a violation under the SCA.”

She denied AM Resorts’ motion for summary judgment on the SCA claim.

However, Brody granted AM Resorts’ motion for summary judgment on the Computer Fraud and Abuse Act, CFAA, claim.

She explained that the CFAA is primarily a criminal statute and that a plaintiff bringing a CFAA claim in a civil suit must prove that he has suffered more than $5,000 in damages. Brooks failed to do so, she said.

The bulk of the losses that Brooks submitted to the court were for the cost of his forensic expert, Brian Harris, who charged about $7,225 for the work he did related to the lawsuit. None of those costs are considered a compensable loss under the CFAA, Brody said.

She addressed in a lengthy footnote his allegation that AM Resorts spoliated evidence when Estelrich, his former manager, came from Mexico to Philadelphia for a deposition and returned to Mexico with his computer’s hard drive despite having been ordered by the court to leave it so that it could be copied. Estelrich also admitted to “working with the computer” after he was back in Mexico and before the hard drive was copied, according to the opinion.

Weighing whether that behavior warranted a sanction as heavy as summary judgment, Brody said, “Estelrich did not destroy the laptop, and the hard drive was eventually copied. Moreover, the privileged email exchange between Brooks and his lawyers was recovered from Estelrich’s hard drive.”

She concluded, “Therefore, it is inappropriate to grant summary judgment in Brooks’ favor as a sanction for AM Resorts’ spoliation of evidence.”

However, Brody finished the footnote by saying, “My denial of Brooks’ motion for summary judgment on this basis in no way condones the actions of AM Resorts. I am very concerned by AM Resorts’ flagrant disregard of my order. I invite Brooks to file a motion in limine seeking an adverse inference instruction at trial based on AM Resorts’ spoliation of evidence.”

Christopher Tinari of Margolis Edelstein represented AM Resorts and couldn’t be reached for comment.

Saranac Hale Spencer can be contacted at 215-557-2449 or [email protected]. Follow her on Twitter @SSpencerTLI.