Civil Practice – Stored Communications Act – Personal Email – Work Computer

There is conflicting evidence as to whether a defendant-employer’s acquisition of an independent contractor’s personal emails occurred unintentionally or intentionally. Consequently, defendants are not entitled to summary judgment under the Stored Communications Act.

We vacate the district court’s grant of summary judgment for defendants.

Facts

Plaintiff worked as an independent contractor for defendant EmergencyMD, LLC. EmergencyMD agreed to allow plaintiff to use her personal Gmail account for her EmergencyMD communications. Plaintiff accessed her Gmail account on EmergencyMD’s computers.

Plaintiff agreed to EmergencyMD’s Electronic Communication Policy:

“All information created, sent, received, or stored on the company’s electronic resources is company property. Such information is not the private property of any employee and employees should have no expectation of privacy in the use or contents of the company’s electronic resources. Passwords do not confer any right of privacy upon any employee of the company. Employees should understand that the company may monitor the usage of its electronic resources and may access, review, and disclose information stored on its electronic resources, including messages, personal e-mail communications sent and received on the employer’s computers but using private email accounts, and other data, at any time, with or without advance notice to the user or the user’s consent.”

Plaintiff left EmergencyMD and went to work for another company. Litigation ensued, including EmergencyMD’s claims of misappropriation of trade secrets. Plaintiff contends EmergencyMD used printouts of her personal emails in the underlying litigation, in violation of the Stored Communications Act (SCA).

Discussion

At issue is whether plaintiff has shown that defendants intentionally, and without authorization, accessed a facility through which electronic communication service was provided.

There is evidence that Megan Montagano, an employee of an EmergencyMD affiliate, inadvertently discovered plaintiff’s emails and printed them out, believing Montagano’s own email account had been hacked. However, there is also evidence that an EmergencyMD employee discovered that plaintiff’s Gmail account had been left open on an EmergencyMD computer and informed another EmergencyMD employee and Montagano, and that plaintiff’s personal emails were printed out thereafter. A jury could credit the latter evidence over the former.

We have not previously addressed the question of whether an unintentional initial discovery of plaintiff’s emails would shield a defendant from liability under the SCA for the subsequent decision to review and print the emails. In any event, the evidence of defendants’ conduct after the initial discovery that plaintiff’s account was open creates a question of fact as to whether defendants intentionally accessed plaintiff’s emails.

We have not had occasion to interpret the term “authorization” as it is used in the SCA. But the term is commonly understood to involve knowing, intentional action. Unintentionally failing to log out of a computer seems at odds with the meaning of authorization. Perhaps it was careless. But did it authorize EmergencyMD to review plaintiff’s private emails? There is at least a question of fact on this issue.

In addition, we see nothing in EmergencyMD’s Electronic Communication Policy to suggest an employee’s use of the company’s shared computer to access her Gmail account for work purposes authorizes EmergencyMD to access and use emails created on a private Gmail account after the employee has been terminated. Furthermore, the record does not establish that plaintiff’s pre-termination emails were created or sent on EmergencyMD’s computers. Also, emails from a Gmail account are not stored on EmergencyMD’s electronic resources; instead, they are stored in Google’s cloud system. There is at least a question of fact as to whether EmergencyMD’s Electronic Communication Policy applies to the emails on plaintiff’s private Gmail account, even if she used that account in doing her job.

Finally, EmergencyMD almost certainly had a right, in the underlying litigation, to seek the emails in question. But there is at least a question of fact as to whether defendants ignored their legitimate litigation options and instead took steps prohibited by the SCA.

Vacated and remanded.

Carson v. EmergencyMD, LLC (Lawyers Weekly No., 003-004-23, 12 pp.) (Per Curiam) No. 22-1139. Appealed from USDC at Greenville, S.C. (Joseph Dawson, J.) Wesley Few for appellant; Mills Ariail for appellees. 4^th Cir. Unpub.