Barry Epstein v. Paula Epstein

Court of Appeals for the Seventh Circuit
843 F.3d 1147, 2016 U.S. App. LEXIS 22223 (2016)

ELI5:

Rule of Law:

Setting an auto-forwarding rule on another person's email account constitutes a contemporaneous interception under the federal Wiretap Act, but disclosing the content of those intercepted communications back to the victim in response to their own discovery request is not an unlawful disclosure under the Act.

Facts:

Barry Epstein and Paula Epstein were married in 1970 and became involved in an acrimonious divorce proceeding in 2011.
Paula accused Barry of infidelity.
Barry alleges that Paula secretly placed an auto-forwarding 'rule' on his email accounts, which automatically forwarded his incoming and outgoing messages to her.
During the discovery phase of the divorce, Barry’s lawyer requested that Paula's lawyer, Jay Frank, produce all documents related to the infidelity allegations.
In response, Frank produced copies of incriminating emails between Barry and several other women, which appeared to have been auto-forwarded from Barry's accounts.

Procedural Posture:

Paula Epstein filed for divorce from Barry Epstein in the Cook County Circuit Court, a state trial court.
Barry Epstein sued Paula Epstein and her attorney, Jay Frank, in the U.S. District Court (a federal court of first instance), alleging violations of the federal Wiretap Act.
Both Paula and Frank filed motions to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).
The district court granted the defendants' motions and dismissed the case.
Barry Epstein, as the appellant, appealed the dismissal to the U.S. Court of Appeals for the Seventh Circuit.

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Issue:

Do allegations that a spouse set up an auto-forwarding rule to intercept her husband's emails, and that her lawyer subsequently produced those emails in response to the husband's discovery request, state a claim for unlawful interception and disclosure under the federal Wiretap Act?

Opinions:

Majority - Sykes, Circuit Judge.

Yes, as to the interception claim against Paula; No, as to the disclosure claim against Frank. Placing an auto-forwarding rule on an email account can constitute a contemporaneous interception under the Wiretap Act, but disclosing the intercepted emails back to the originator in response to their own discovery request is not an unlawful disclosure. The court reasoned that the complaint stated a valid claim against Paula because an 'interception' can occur at the server when an email is copied, not necessarily when the wrongdoer receives it, making it contemporaneous with transmission. Therefore, time gaps on the emails attached to the complaint did not conclusively defeat the claim at the pleading stage. The claim against Frank failed because one cannot unlawfully 'disclose' information to the person from whom it was taken, who already knows its contents, and who formally requested its production. The court also rejected the 'use' claim against Frank, as the complaint only alleged an inchoate intent to use the emails, which the Act does not prohibit.

Concurring - Posner, Circuit Judge.

Yes, but the Wiretap Act should not be interpreted to apply in this context. While Judge Posner agrees that the majority correctly applied the existing understanding of the Wiretap Act, he questions the wisdom of applying the Act to a spouse gathering evidence of marital infidelity. He argues that privacy used to conceal misconduct, such as adultery (a crime in Illinois), is not a social good deserving of legal protection. In his view, the husband's lawsuit is a waste of judicial resources that seeks to reward him for concealing criminal activity, and the Act should not provide a remedy for wiretaps intended to obtain evidence of a crime.

Analysis:

This decision clarifies the application of the Wiretap Act to modern email technology, confirming that automated forwarding rules can constitute 'contemporaneous interception' sufficient to survive a motion to dismiss. It sets a precedent that makes it more difficult for defendants to defeat such claims at an early stage based on email time-stamps alone. The ruling also creates a logical safe harbor for attorneys, establishing that complying with a discovery request by producing intercepted documents to the party from whom they were intercepted is not an unlawful 'disclosure' under the Act. Judge Posner's concurrence highlights an ongoing tension in the law regarding the Act's application to domestic disputes and the investigation of misconduct.

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