Barry Epstein v. Paula Epstein
2016 U.S. App. LEXIS 22223
| 7th Cir. | 2016Background
- Barry Epstein sued his estranged wife Paula and her lawyer Jay Frank under the Wiretap Act, alleging Paula placed an auto‑forwarding rule on his email that forwarded his messages to her and that Frank disclosed those intercepted emails in divorce discovery.
- The contested emails were produced in the ongoing Illinois divorce litigation in response to Barry’s broad discovery request about alleged infidelity.
- Barry attached samples of forwarded emails to his amended complaint; the headers show timestamps for when Barry’s client sent/received messages and when Paula’s client received forwarded copies.
- Defendants moved to dismiss under Rule 12(b)(6), arguing (1) the Wiretap Act covers only contemporaneous interceptions during transmission (so forwarded/stored emails aren’t covered), and (2) Frank cannot be liable for producing Barry’s own emails in response to his discovery request.
- The district court dismissed the complaint against both defendants; the Seventh Circuit affirmed dismissal as to Frank but reversed as to Paula, holding the attached email headers did not conclusively refute Barry’s allegation of contemporaneous interception.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Wiretap Act requires interception contemporaneous with transmission | Epstein: Paula intercepted emails contemporaneously (auto‑forwarding copied at the server when messages arrived) | Defendants: Headers show delays; forwarding happened after transmission completed, so Wiretap Act doesn’t apply | Court: Did not decide the circuit split; found Barry plausibly alleged contemporaneous interception and headers did not conclusively defeat the claim — claim against Paula survives dismissal |
| Whether the lawyer (Frank) is liable under the Wiretap Act for producing/interpreting the emails in discovery | Epstein: Frank ‘‘disclosed’’ and ‘‘used’’ intercepted contents by producing them and intending to embarrass Barry | Frank: He produced emails in response to Barry’s discovery request; disclosure to the requesting party isn’t unlawful; any alleged intent is inchoate | Court: Affirmed dismissal as to Frank — producing the emails to Barry (via counsel) did not unlawfully disclose their contents and complaint alleges only inchoate intent to embarrass |
Key Cases Cited
- United States v. Szymuszkiewicz, 622 F.3d 701 (7th Cir.) (server copying can constitute interception)
- Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107 (3d Cir.) (Wiretap Act covers contemporaneous interceptions; stored communications governed elsewhere)
- Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir.) (limits on Wiretap Act for non‑contemporaneous access)
- United States v. Councilman, 418 F.3d 67 (1st Cir.) (transmission completes when intended recipient receives message)
- United States v. Wuliger, 981 F.2d 1497 (6th Cir.) (discussion whether consent affects disclosure/use liability under §2511)