108 F. Supp. 3d 613
N.D. Ill.2015Background
- Plaintiffs allege a violation of the Stored Communications Act and civil conspiracy; conspiracy claim dismissed; summary judgment on SCA claim denied.
- Fairbanks LLC hosts its email via 123Together since 2005; members use Microsoft Outlook with Fairbanks as the subscriber, not individuals.
- Archiving for Compliance was activated October 26, 2012; designated administrators could search company-wide emails via SAP privileges.
- Defendants Carnes, Hamilton, and Pease had SAP privileges; Hamilton activated archiving and assisted with search capabilities.
- Whether activation of archiving was authorized by Fairbanks LLC remains a material fact; the archiving system was not in place before November 2012 and its activation enabled access to archived emails.
- Archived emails were stored in a 123Together/Sonian database, constituting electronic storage, and were searchable post-transmission.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was access to plaintiffs’ emails authorized by Fairbanks LLC? | Fairbanks authorized archiving and company-wide searches. | Activation of archiving and access by SAP admins may have been within company authority; disputed whether authorized by Fairbanks. | Genuine issue of material fact; jury must decide authorization. |
| Are archived messages in electronic storage under the SCA? | Archived emails stored for backup/search fall within electronic storage. | Archiving may be outside the storage contemplated; contested interpretation of storage. | Yes, archived emails constitute electronic storage under §2510(17)(B). |
| Can plaintiffs recover statutory damages without proof of actual damages? | SCA allows statutory damages even without actual damages. | Damages require actual damages or profits. | Statutory damages may be recoverable without proving actual damages. |
| Does service-provider authorization immunize the defendants? | Authorization must be by the provider or a authorized user; record facts show potential authorization by Fairbanks. | Archiving was authorized by 123Together; providers have immunity when they obtain/alter protected access. | Material fact for jury; not entitled to summary judgment on authorization. |
| Did plaintiffs waive their SCA rights by using Fairbanks’ email system? | Waiver not supported by authority; using service does not waive rights. | No explicit waiver authority; users’ conduct may defeat claims. | Waiver argument rejected as unsupported by controlling authority. |
Key Cases Cited
- Theofel v. Farey-Jones, 359 F.3d 1066 (9th Cir. 2004) (storage applicable to backup storage under the SCA)
- Shlahtichman v. 1-800 Contacts, Inc., 615 F.3d 794 (7th Cir. 2010) (SCA private right of action and storage concepts)
- Cornerstone Consultants, Inc. v. Prod. Input Solutions, L.L.C., 789 F. Supp. 2d 1029 (N.D. Iowa 2011) (provider immunity under SCA relies on statutory framework)
- Cousineau v. Microsoft Corp., 992 F. Supp. 2d 1116 (W.D. Wash. 2013) (provider authorization and access authority under SCA)
- United States v. Councilman, 418 F.3d 67 (1st Cir. 2005) (SCA scope and provider involvement)
- Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107 (3d Cir. 2003) (SCA storage and access interpretations)
- Maremont v. Susan Fredman Design Grp., Ltd., 2014 WL 812401 (N.D. Ill. 2014) (cited for damages framework under SCA (WL not allowed; omitted reporter))