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Thursday, December 15, 2016

Ind. Decisions - Interesting 7th Circuit decision involving divorce and federal Wiretapping and Electronic Surveillance Act

In Barry Epstein v. Paula Epstein (ND Ill.), a 12-page opinion (including a separate concurring opinion), Judge Sykes writes [ILB emphasis in bold]:

Barry Epstein sued his estranged wife, Paula, alleging that she violated the federal Wiretapping and Electronic Surveillance Act by intercepting his emails. The action arises from the couple’s acrimonious divorce. Paula accused Barry of serial infidelity, so in discovery Barry asked her for all documents related to that accusation. Paula complied and produced copies of incriminating emails between Barry and several other women. Her discovery response spawned this satellite litigation (the divorce action is still pending). Barry alleges that Paula violated the Wiretap Act by surreptitiously placing an auto-forwarding “rule” on his email accounts that automatically forwarded the messages on his email client to her. He also claims that Paula’s divorce lawyer violated the Act by “disclosing” the intercepted emails in response to his discovery request. The district judge dismissed the suit on the pleadings.

We affirm in part and reverse in part. The complaint doesn’t state a Wiretap Act claim against Paula’s lawyer. The lawyer can’t be liable for disclosing Barry’s own emails to him in response to his own discovery request. The allegations against Paula, on the other hand, technically fall within the language of the Act, though Congress probably didn’t anticipate its use as a tactical weapon in a divorce proceeding. * * *

[p. 11] POSNER, Circuit Judge, concurring. I agree with Judge Sykes that under the existing understanding of the Federal Wiretap Act Paula Epstein violated it if she searched her husband’s computer for evidence of adultery by him that she could use against him in divorce proceedings, without having obtained his consent to her accessing his computer. I write separately to raise a question that neither party addresses and is therefore not before us on this appeal— whether the Act should be thought applicable to such an invasion of privacy; for if not the husband’s suit should be dismissed.

Posted by Marcia Oddi on December 15, 2016 09:56 AM
Posted to Ind. (7th Cir.) Decisions