United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
REBECCA THERFORD UNITED STATJES MAGISTRATE JUDGE.
memorandum opinion, the Court sets out its findings of fact
and conclusions of law following a bench trial held in this
civil action arising out of a business dispute in which
Plaintiffs Insurance Safety Consultants, LLC and Christopher
Roberts bring claims against Defendant Carri Nugent under the
Stored Communications Act and Electronic Communications
Privacy Act for alleged unlawful email disclosures occurring
after June 29, 2013. See Fed. R. Civ. P. 52(a)(1)
(requiring trial court in nonjury cases to find facts
specially and state separately its conclusions of law). All
findings of fact are based on a preponderance of the evidence
standard. The Court's memorandum opinion complies with
the level of detail the Fifth Circuit requires for findings
of fact and conclusions of law. See, e.g.,
Century Marine Inc. v. United States, 153 F.3d 225,
231 (5th Cir. 1998) (discussing standards). Though the Court
carefully considered the trial testimony and exhibits, it has
not set out its findings and conclusions in punctilious
detail, slavishly traced the claims issue-by-issue and
witness-by-witness, or indulged in exegetics, parsing or
declaiming every fact, nuance, and hypothesis. Id.
Instead, the Court's memorandum opinion contains findings
and conclusions that provide a clear understanding of the
basis for the Court's decision. See id.
Roberts (Roberts) and Kevin West (West) owned Safety and
Environmental Solutions, LLC (SES). Proposed Jt. Order 3 (ECF
No. 205). Defendant Carri D. Nugent (Nugent) worked for SES,
but after Roberts and West had a dispute about SES's
ownership, she began working for Insurance Safety
Consultants, LLC (ISC) in January 2013. Id. As part
of her new job, Nugent used her personal laptop computer to
set up email accounts for herself and Roberts at ISC. Tr.
24-25 (ECF No. 218). Nugent had access to Roberts's ISC
email account on her laptop. Id. 27:24-28:10.
January 2013, West and SES filed a lawsuit against Roberts
and ISC in the 192nd Judicial District of Dallas County,
Texas. Proposed Jt. Order 3. Nugent was deposed on March 1,
2013, and the state court held a temporary-injunction hearing
on April 18, 2013. Id. 4. Sometime between March 1,
2013, and April 18, 2013, Nugent and her counsel met with
West and SES's counsel. Id. Shortly after the
April 18, 2013 injunction hearing, ISC terminated Nugent, and
she returned to work for SES. Id. In her
interrogatory responses, Nugent admits she sent Roberts's
emails to West on April 22, 2013, and again on December 15,
2013. Id. One referenced email was sent May 12,
and ISC then filed their Original Complaint in this Court on
June 29, 2015, later amended, asserting claims against Nugent
under the Computer Fraud and Abuse Act, 18 U.S.C. § 1030
(CFAA), the Electronic Communications Privacy Act, 18 U.S.C.
§ 2510 (ECPA), and the Stored Communications Act, 18
U.S.C. § 2701 (SCA). Compl. (ECF No. 1); 2d Am. Compl.
(ECF No. 130). Nugent also filed a counterclaim against
Plaintiffs. Nugent Am. Compl. (ECF No. 49). On September 11,
2018, the undersigned entered Findings, Conclusions, and a
Recommendation on Plaintiffs' motion for summary judgment
on Nugent's counterclaim and Nugent's motion for
summary judgment on Plaintiffs' claims under the CFAA,
ECPA, and SCA. FCR (ECF No. 180). The District Judge accepted
these Findings, granted Plaintiffs' motion, dismissed
Nugent's counterclaims with prejudice, granted
Nugent's motion in part, and dismissed Plaintiffs'
CFAA claims in totality and Plaintiffs' ECPA and SCA
claims, relating to disclosures of intercepted information
that occurred before June 29, 2013. Order Accepting (ECF No.
182); Judgment (ECF No. 183). Therefore, only Plaintiffs'
ECPA and SCA claims concerning disclosures of intercepted
information occurring after June 29, 2013, remained for
the parties waived their right to proceed before the District
Judge and consented to have the undersigned United States
Magistrate Judge conduct all further proceedings, including
the trial and entry of a final judgment. Consent (ECF No.
186). The parties withdrew their demand for a jury trial (ECF
No. 207), and the Court conducted a bench trial on August 20,
2019. The parties later submitted proposed findings of fact
and conclusions of law per the Court's
instruction. The Court has reviewed the parties'
proposed findings of fact and conclusions of law and now
finds for Defendant on Plaintiffs' remaining SCA and ECPA
Standards and Analysis
Plaintiffs, Roberts and ISC bear the burden of proof on all
elements of their SCA or ECPA claims. Plaintiffs must prove
each element by a preponderance of the evidence. United
States v. Valdez-Robles, 37 Fed.Appx. 714, 714 (5th Cir.
2002) (per curiam) (citing United States v.
Barksdale-Contreras, 972 F.2d 111, 115 (5th Cir. 1992))
(“A preponderance of the evidence means only that it is
more likely than not that a fact is true.”). The Fifth
Circuit has found “no indication . . . that Congress
intended for conduct that is clearly prohibited by Title II
[SCA] to furnish the basis for a civil remedy under Title I
[ECPA] as well.” Steve Jackson Games, Inc. v. U.S.
Secret Serv., 36 F.3d 457, 462-63 (5th Cir. 1994);
see also Shefts v. Petrakis, 2012 WL 4049484, at *4
(C.D. Ill. Sept. 13, 2012) (“[T]he Court must reject
Defendants' argument that if the Court finds that
Defendants ‘accessed' any of Plaintiff's
‘stored communications,' it must automatically
grant them summary judgment as to Count I, which alleges
‘interception.' The Court agrees that the same
conduct cannot constitute both an
‘interception' and an
‘accession.'”). Accordingly, the Court first
evaluates Defendant's conduct under the SCA's
The Stored Communications Act
Court finds for Defendant on Plaintiffs' SCA claim. The
SCA prohibits “intentionally access[ing] without
authorization a facility through which an electronic
communication service is provided . . . and thereby
obtain[ing], alter[ing], or prevent[ing] authorized access to
a wire or electronic communication while it is in electronic
storage in such system . . . .” 18 U.S.C. §
2701(a)(1). “[A]n ‘electronic communication'
is defined as ‘any transfer of signs, signals,
writing, images, sounds, data, or intelligence of any nature
transmitted in whole or in part by a wire, radio,
electromagnetic, photoelectronic or photooptical system . . .
but does not include . . . any wire or oral communication . .
. .'” Steve Jackson Games, 36 F.3d at 461
(quoting 18 U.S.C. § 2510(12)); 18 U.S.C. § 2711(1)
(incorporating “the terms defined in section 2510 of
this title” into the SCA). Email constitutes an
electronic communication within the meaning of the statute.
See Steve Jackson Games, 36 F.3d at 461-62.
“While the SCA does not define the term
‘facility,' it does define the terms
‘electronic communication service' and
‘electronic storage.'” Garcia v. City of
Laredo, 702 F.3d 788, 792 (5th Cir. 2012). An
“‘electronic communication service'” is
“‘any service which provides to users thereof the
ability to send or receive wire or electronic
communications.'” Id. (citing 18 U.S.C.
§ 2510(15) (incorporated by reference in 18 U.S.C.
§ 2711(1) of the SCA)). And electronic storage “is
defined as ‘(A) any temporary, intermediate storage of
a wire or electronic communication incidental to the
electronic transmission thereof; and (B) any storage of such
communication by an electronic communication service for
purposes of backup protection of such
communication.'” Cruz Lopez v. Pena, 2013
WL 819373, at *3 (N.D. Tex. Mar. 5, 2013) (citing 18 U.S.C.
§ 2510(17)); see also Steve Jackson Games, 36
F.3d at 461.
electronic storage “encompasses only the information
that has been stored by an electronic communication service
provider, ” and not information that an individual
stores to his hard drive. Garcia, 702 F.3d at 793
(citations omitted). In Garcia, Garcia claimed the
defendants accessed text messages and images on her phone in
violation of the SCA. Id. at 790. The Fifth Circuit
held that the text messages and photos stored on Garcia's
phone were not in electronic storage as defined by the
statute, and, therefore, beyond the SCA's scope.
Id. at 793. Specifically, the court explained,
“information that an internet provider stores to its
servers or information stored with a telephone company-if
such information is stored temporarily pending delivery or
for purposes of backup protection-are examples of protected
electronic storage under the statute, ” but
“information that an individual stores to his hard
drive or cell phone is not in electronic storage under the
statute.” Id. (citing Freedom Banc Mortg.
Servs., Inc. v. O'Harra, 2012 WL 3862209, at *8-9
(S.D. Ohio Sept. 5, 2012); Hilderman v. Enea TekSci,
Inc., 551 F.Supp.2d 1183, 1205 (S.D. Cal. 2008);
Bailey v. Bailey, 2008 WL 324156, at *6 (E.D. Mich.
Feb. 6, 2008) (unpublished)).
Court finds Plaintiffs did not carry their burden to prove
Roberts's emails were in electronic storage. For Nugent
to be liable under the SCA, Plaintiffs would have to prove
that she intentionally accessed “a facility through
which an electronic communication service is provided”
without authorization to obtain Roberts's emails while
they were in electronic storage. Here, Nugent “set up
[her] laptop . . . to get copies of Mr. Roberts'
emails” when she set up ISC's email accounts using
Office 365. Tr. 75:22-25; 76:1-21; 78:12-25; 79:1-18;
82:11-18. Robert Shofkom, a Microsoft-certified systems
engineer, testified at trial that “Office 365 is
Microsoft's software” that enables “the
client machines . . . [to] talk with the Microsoft exchange
server.” Id. 119:1-5. He explained that it
uses the “MAPI protocol” to synchronize email
across devices. Id. 119:1-25; 120:1-7; 121:5-8.
Outlook is the email client on a computer that communicates
with the Office 365 exchange server. Id. 121:11-13.
“[A]n outgoing email out of Outlook would go . . . from
the client to the server, and then from the server it would
go across the internet . . . to the various users.”
Id. 123:9-16. The Office 365 exchange server must
have stored these emails temporarily pending delivery or for
backup protection for Roberts's emails to be considered
“in electronic storage” at the time of
Nugent's access. See 18 U.S.C. § 2510(17).
Though “an OST file is what the MAPI protocol creates
and what Office 365 creates as a storage container for all
the mail, ” Plaintiffs elicited no testimony regarding
whether Microsoft's “exchange server” stores
emails, even temporarily. The name, “exchange server,
” seems to suggest it does not. The Court, thus, finds
Plaintiffs did not carry their burden to prove by a
preponderance of evidence that Roberts's emails were in
Plaintiffs had carried their burden on this element, the
Court finds Plaintiffs' SCA claim would fail because 18
U.S.C. § 2701(a)(1) is not dependent on any
“disclosure” or “use” like
§§ 2511(1)(c) and (d). Rather, the SCA depends on
the intentional “access” of stored, electronic
communications. Nugent testified that she was sent home on
April 19, 2013, where she remained until May 2, 2013. Tr.
80:10-13. During that time, she realized her ISC email access
had been cut off, which would also include access to
Roberts's emails. Id. 80:14-20. Accordingly, the
Court finds any disclosure of Roberts's emails after that
would have involved accessing ...