Andrea Clare v. Kevin Clare
982 F.3d 1199
| 9th Cir. | 2020Background
- Andrea and Kevin Clare were married; Kevin repeatedly accessed Andrea’s electronic devices and, once using her thumbprint, accessed and forwarded approximately ten of her work e‑mails from her Microsoft Exchange account.
- Kevin continued to access Andrea’s work e‑mail via a shared iPad after she moved out and used the information in divorce proceedings.
- Andrea and her law firm sued Kevin under the Stored Communications Act (SCA); after other claims resolved, Andrea pursued an SCA claim alleging unauthorized access.
- IT employee Dan Morgan submitted a declaration that the firm maintained a private, firewall‑protected server that regularly downloaded and stored Exchange e‑mails for security/backup, and that an Apple device (not Andrea’s phone) logged in using her credentials in 2017–2018.
- The district court excluded Morgan’s declaration (finding it lacked expert foundation) and granted summary judgment for Kevin, concluding Andrea failed to show the e‑mails were in SCA “backup” electronic storage.
- The Ninth Circuit reversed and remanded: it held excluding Morgan’s lay testimony was an abuse of discretion and that his declaration created a genuine dispute whether the e‑mails were stored for backup protection under the SCA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court properly excluded Morgan’s declaration | Morgan’s statements are lay testimony based on personal knowledge of the firm’s storage practices and admissible | Declaration lacked expert qualifications and foundation; court should exclude | Exclusion was abuse of discretion; lay portions admissible and create factual dispute |
| Whether the accessed e‑mails were in “electronic storage” for “backup protection” under the SCA | E‑mails were stored both on Microsoft Exchange and on the firm’s private backup server, satisfying subsection (B) | No evidence e‑mails were in backup storage as required by the SCA | Morgan’s declaration creates a genuine dispute of material fact on backup/storage; summary judgment improper |
| Whether accessing a user’s web‑based/service copy (Exchange) is categorically outside subsection (B) | Both service copies and backup/storage copies can be stored for backup; no categorical exclusion | Access via the same platform the user uses defeats backup‑protection theory | Court rejects a categorical distinction; leaves question of web‑only storage unresolved on these facts |
Key Cases Cited
- Theofel v. Farey‑Jones, 359 F.3d 1066 (9th Cir. 2004) (defines “electronic storage” and interprets storage “for purposes of backup protection” under the SCA)
- Hately v. Watts, 917 F.3d 770 (4th Cir. 2019) (refuses to distinguish protection between service copies and other storage copies)
- Flores v. City of San Gabriel, 824 F.3d 890 (9th Cir. 2016) (standard of review for summary judgment)
- Domingo v. T.K., 289 F.3d 600 (9th Cir. 2002) (standard for reviewing evidentiary rulings on appeal)
- Cline v. Reetz‑Laiolo, 329 F. Supp. 3d 1000 (N.D. Cal. 2018) (district‑court discussion of web‑based email and backup‑storage questions)