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Hovanec v. Miller

United States District Court, W.D. Texas, San Antonio Division

July 2, 2019

ALISON HOVANEC, Plaintiff,
v.
TRACI MILLER, Defendant.

          ORDER

          XAVIER RODRIGUEZ UNITED STATES DISTRICT JUDGE

         On this date, the Court considered Defendant Traci Miller's Motion to Exclude Expert Opinion Testimony of Joel Sauceda (docket no. 74). After careful consideration, the Court will grant in part and deny in part.

         Background

         Plaintiff Alison Hovanec sues Traci Miller for violation of the Stored Communications Act (“SCA”), 18 U.S.C. § 2701 et seq., violation of the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030 et seq., intrusion on seclusion, and intentional infliction of emotional distress.

         In her live pleading, the Second Amended Complaint, Plaintiff alleges that she and Miller were friends and had worked together. On May 13, 2016, Hovanec and Miller had a confrontation over the fact that Miller's daughter did not want to spend the night with Hovanec's daughter at Hovanec's house. On May 16, 2016, Hovanec received an email from Carlisle Etcetera, a clothing company for which she worked, in regard to a message they received from Miller stating that she had never received a refund from Hovanec and/or Carlisle Etcetera for a blouse she had purchased through Hovanec and returned in November 2015.

         Later that day, Hovanec received a call from her mother, who was distressed about having received an email purportedly from Hovanec with the email address alisontheloser@gmail.com titled “Your Daughter is Dating a Married Man.” Hovanec herself also received an email from alisontheloser@gmail.com “Joel's so Called Divorce.” The Joel/”married man” referenced in the emails was Joel Sauceda.

         Hovanec contacted Sauceda and asked him if he knew what to do to identify the person sending the emails and stop them. Sauceda owns an internet technology company and began devising a plan to identify the person through capturing their IP address.[1] Because the sender's email address was a gmail account, Sauceda would not be able to obtain the sender's IP address from the email itself, so he wanted to bring the user outside of gmail. Sauceda created a gmail account Roslynjames1954@gmail.com and began communicating by email with alisontheloser@gmail.com. Roslyn James was just a name he made up. Sauceda depo. at 120.

         Pretending to be Roslynjames1954, Sauceda wrote “I need info. must talk on private line. he will go down. working for the man.” The user at alisontheloser@gmail.com responded, “Working for what man? He is the agent of record for about a dozen different business entities all run out of a small crappy office in San Antonio. His house has been foreclosed on in Summerglen and license revoked involuntarily for Ad Plotter due to unpaid taxes. He lives in an apartment and drives a leased Mercedes. He is a total con artist. If you are a PI you can easily find all this out yourself.” Sauceda was “pretty shocked” that he got a response and wanted to get the person curious enough to click on a link to a webpage so he could capture their IP address. Sauceda depo. at 120, 122.

         Sauceda owned the domain greenpowur.com and created a webpage on that domain, on which he installed code provided from a web analytics company called statcounter that he knew would capture the IP address of a visitor to the page. Sauceda depo. at 49-51, 66.[2] Sauceda sent another email from roslynjames1954@gmail.com to alisontheloser@gmail.com stating, “he is up to some other crap now have you seen this green power thing he is doing? I do not see a corp registration for this. look at this page he has up. another scam.” That email contained a link to the webpage on greenpowur.com that included statcounter code to capture the IP addresses of page visitors.

         On the morning of May 17, Sauceda discovered from his statcounter report that the user had clicked on the link, and the statcounter report provided the user's IP address (108.65.34.232) and identified the user as having an AT&T U-Verse account, using a mac operating system (OS X) with a Safari browser, and being located in San Antonio, Texas. Sauceda's expert report states that the person clicked on the link “where the static[3] IP address of 108.65.34.232 was captured along with identifying information to include a close proximity to Hovanec's house at [address] San Antonio, TX 78216, a MAC operating system along with AT&T Uverse service.” Sauceda report at ¶ 6.[4]

         Sauceda asked Hovanec if she knew who it could be. Hovanec had been in Miller's house many times and knew that Miller had AT&T U-Verse and a mac operating system, and thus Hovanec suspected it was Miller behind the alisontheloser@gmail.com emails. Hovanec knew that Miller used a gmail account, so Sauceda determined that he would not be able to capture her IP address from an email. Hovanec and Sauceda devised a plan to email Miller and get her to click on a link to a webpage with the statcounter code to compare Miller's IP address to the one used by alisontheloser@gmail.com. They decided to do so using an email about the Carlisle Etcetera blouse return.

         Sauceda set up a different webpage on another domain he owned (shallybrady.com) and Hovanec sent Miller an email to Miller's personal email account tracilmiller@gmail.com about the message from Carlisle Etcetera and the blouse refund. Sauceda created an image of the Carlisle Etcetera email on the shallybrady.com webpage. On May 17, Hovanec emailed tracilmiller@gmail.com a link to the image, writing “I received this from Etcetera yesterday.” To see the entire email image, Miller would have to click on the link, which would take her to the shallybrady.com webpage with the statcounter code. The email recipient (presumably Miller) clicked on the image, and the statcounter report showed the IP address 108.65.34.232, with the user having a Mac operating system (OS X) with a Safari browser, and an AT&T U-Verse account.[5] This was the same IP address and information as the alisontheloser@gmail.com visitor. Thus, Sauceda states in his expert report, “the culprit behind alistontheloser@gmail.com . . . and tracilmiller.com have IDENTICAL IP addresses.” Sauceda report at 10.

         Later on May 17, Sauceda sent another email as roslynjames1954@gmail.com to alisontheloser@gmail.com, and received a delivery failure notification from Gmail that the account did not exist. Sauceda report Ex. H. Discovery from Google reveals that the alisontheloser@gmail.com email was deleted on May 17. Hovanec suspects that Miller deleted the email account after receiving an email from Hovanec's lawyer, which was emailed to Miller on May 17 and included a preservation notice. Hovanec Aff. (docket 77-1) at 23.

         Hovanec designated Joel Sauceda as an expert witness in this case. He produced a written report and was deposed. Sauceda's summary in his report states,

The forensic investigation revealed the static IP address of Alison Hovanec alisontheloser@gmail.com 108.65.34.232 is the same static IP address of Traci Miller tracilmiller@gmail.com 108.65.34.232. Traci Miller is Alison Hovanec alisontheloswer@gmail.com and has access to both of these accounts from the same physical location.
It is also my opinion that Traci Miller changed her static IP address and visited the Shally Brady site again on May 26, 2016 as an IP address of 108.65.34.102 was captured which would signify Miller made an effort to change her IP prior to her responding to the initial response to Hovanec's attorney trapping letter to include a violation of spoliation of evidence that was included in that letter.

         Sauceda Report at 4. Miller challenges each of these opinions.

         Applicable Standard

         Rule 702 of the Federal Rules of Evidence provides for the admissibility of expert testimony if it will “help the trier of fact to understand the evidence or to determine a fact in issue.” Fed.R.Evid. 702. Additionally, the testimony must be “based on sufficient facts or data” and be “the product of reliable principles and ...


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