No Storage Specification Needed in E-Mail Access Claim

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By Alexis Kramer

May 26 — A woman's workplace e-mail unlawful access claim may proceed despite her complaint failing to identify how the e-mails were electronically stored, a federal court held May 25 ( Owen v. Cigna, N.D. Ill., No. 1:15-cv-09880, dismissed in part 5/25/16 ).

Judge John Z. Lee of the U.S. District Court for the Northern District of Illinois ruled that the plaintiff need not specify at the pleading stage whether the e-mails were stored as backup protection.

The court takes a lenient stance on the “electronic storage” requirement under the Stored Communication Act, permitting plaintiffs to make general allegations before the lawsuit's discovery stage that their e-mails were stored on a server.

The Stored Communication Act, 18 U.S.C. 2701(a), provides a civil action for the unauthorized access to e-mails while they are in electronic storage. The statute defines “electronic storage” as the temporary storage of a communication incidental to transmission or storage of such communication for backup protection purposes.

No Need to Be Specific

Plaintiff Lois Owen alleged that her employer Paul Cigna accessed her private e-mail account through her work computer after leaving her job at Professional Consultants Inc. Cigna moved to dismiss the claim.

The court rejected Cigna's argument that the SCA claim fails because Owen didn't allege she was storing “backup” copies of her e-mails.

The court cited Theofel v. Farey-Jones, 359 F.3d 1066 (9th Cir. 2004), in which the U.S. Court of Appeals for the Ninth Circuit held that copies of opened e-mails remaining on an e-mail server, even after being delivered to their intended recipients, are stored for backup protection purposes within the meaning of the SCA (9 ECLR 190, 2/25/04).

But Theofel didn't hold that to state an SCA claim a plaintiff must allege that a message was being stored for backup purposes, the district court said.

The court also looked to Pascal Pour Elle Ltd. v. Jin, 75 F. Supp. 3d 782 (N.D. Ill. 2014), which held that a hair salon company adequately pled that the data at issue was in electronic storage despite not alleging that it was stored temporarily or as a backup (20 ECLR 10, 1/7/15). A short and plain statement of the claim is all that is required at the pleading stage, not an allegation of the specific category of storage the data at issue was in when accessed, the Pascal court said.

In the instant case, Owen's allegations that Cigna accessed private e-mails stored on a server at att.net were sufficient to state an SCA claim, the Owen court said.

The court also rejected Cigna's argument that even if he did access the e-mails while they were in electronic storage, he was authorized to do so and thus can't be held liable under the SCA. Cigna was authorized to access Owen's work computer after termination, but he may not have been authorized to access her e-mail account, the court said.

The Law Office of Kelli Dudley represented Owen. Robbins Salomon & Patt Ltd. represented Cigna.

To contact the reporter on this story: Alexis Kramer in Washington at akramer@bna.com

To contact the editor responsible for this story: Donald G. Aplin at daplin@bna.com