The opinion of the court was delivered by: Joe Billy McDADE United States Senior District Judge
E-FILED Tuesday, 29 November, 2011 03:16:55 PM Clerk, U.S. District Court, ILCD
This matter is before the Court on Plaintiff's Motion for Summary Judgment (Doc. 187), Defendants' Motion for Leave to File Third-Party Complaint for Contribution (Doc. 181), Defendants' Motion for Leave to File a Reply in support of their Motion for Leave to File Third-Party Complaint for Contribution (Doc. 192), and Plaintiff's Motion to File Affidavit of John Tandeski Under Seal (Doc. 206). The Motions are fully briefed and ready for decision. Defendants do not object to Plaintiff's Motion to File Affidavit of John Tandeski Under Seal, and so it will be granted. (Doc. 206). For the reasons stated below, Plaintiff's Motion for Summary Judgment is denied, Defendants' Motion for Leave to File Third-Party Complaint for Contribution is granted, and Defendants' Motion for Leave to File a Reply in support of their Motion for Leave to File Third-Party Complaint for Contribution is granted.
In his Amended Complaint, Plaintiff raises four counts against Defendants, all related to their monitoring of his electronic communications. Count I alleges that Defendants violated the Electronic Communications Privacy Act ("ECPA"), 18 U.S.C. § 2511, by intercepting Plaintiff's emails on his personal Yahoo email account, both his emails and text messages on his Blackberry device, and electronic communications on his computer at Access2Go. Counts II, III, and IV rely on the same conduct to charge Defendants with violation of the Illinois Eavesdropping Statute, 720 Ill. Comp. Stat. § 5/14-1 et seq., the Stored Communications Act ("SCA"), 18 U.S.C. § 2701, and the Computer Fraud and Abuse Act ("CFAA"), 18 U.S.C. § 1030, respectively.
In its recent order on Defendants' Motion for Summary Judgment as to all counts of Plaintiff's Amended Complaint, the Court granted summary judgment in all Defendants' favor on Count IV, and denied summary judgment as to the first three counts. In December 2010, the Court also denied Plaintiff's first Motion for Summary Judgment against Defendants Petrakis and Huffman as to Counts I, II, and III. (Doc. 84). Plaintiff's argument under Count I was that Petrakis and Huffman violated the ECPA by intercepting his text messages; the Court found that, viewing the evidence in the light most favorable to Defendants, Plaintiff had consented to the "logging" of his text messages. (Doc. 84 at 16-17). Under Count II, Plaintiff argued that Petrakis and Huffman violated the Illinois Eavesdropping Statute by obtaining Plaintiff's communications on his Blackberry device, his Access2Go email account, and his Yahoo email account. The Court found, viewing the evidence in the light most favorable to Defendants, Plaintiff had no reasonable expectation of privacy in his communications made via Access2Go's equipment because the Manual gave him sufficient notice of monitoring, and because Petrakis had been authorized by the Manual to access his communications. (Doc. 84 at 20-23). Finally, as to Plaintiff's allegation in Count III that Petrakis and Huffman had violated the SCA by accessing Plaintiff's communications, the Court relied on its finding that Petrakis was authorized to do so under the Manual. (Doc. 84 at 24). For the purposes of that Motion, the parties agreed that Plaintiff's communications were "electronic communications" under the SCA. (Doc. 84 at 24). Each of the Court's determinations as to Plaintiff's first Motion for Summary Judgment relied on the terms of the Employee Manual, which went into effect on July 2, 2008; Plaintiff's instant Motion concerns only Count III, and only the time period prior to the implementation of the Manual.
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
Plaintiff argues that summary judgment should be granted in his favor, against Defendant Petrakis, on Count III of his Amended Complaint, based on Petrakis' alleged access to his communications prior to June 18, 2008.
Summary judgment should be granted where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). In ruling on a motion for summary judgment, the Court must view the evidence on record in the light most favorable to the non-moving party. SMS Demag Aktiengesellschaft v. Material Sciences Corp., 565 F.3d 365, 368 (7th Cir. 2009). All inferences drawn from the facts must be construed in favor of the non-movant; however, the Court is not required to draw every conceivable inference from the record. Smith v. Hope School, 560 F.3d 694, 699 (7th Cir. 2009). The Court draws only reasonable inferences. Id.
It is not the Court's function to scour the record in search of evidence to defeat a motion for summary judgment. Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009) (quoting Greer v. Bd. of Educ., 267 F.3d 723, 727 (7th Cir. 2001)). Once the movant has met its burden of showing the Court that there are no genuine issues of material fact, to survive summary judgment the "non-movant must show through specific evidence that a triable issue of fact remains on issues on which he bears the burden of proof at trial." Warsco v. Preferred Tech. Group, 258 F.3d 557, 563 (7th Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). If the evidence on record could not lead a reasonable jury to find for the non-movant, then no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. McClendon v. Indiana Sugars, Inc., 108 F.3d 789, 796 (7th Cir. 1997). At the summary judgment stage, however, the court may not resolve issues of fact; disputed material facts must be left for resolution at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986).
During the time period relevant to this Motion, Plaintiff, Petrakis, and Kevin Morgan each owned 30% of the shares of Access2Go, with John Tandeski owningthe remaining 10%; each of these men held one of the four positions on the Board of Directors. (Amended Complaint ¶ 4; Answer ¶ 4; Doc. 152 ¶ 8). During that period, Access2Go provided an email system to its personnel, including Plaintiff. (Doc. 152, Ex. A at ¶¶ 1-2; Doc. 205, Ex. A at ¶ 7). Emails sent using the Access2Go system were stored on its servers. (Doc. 60, Ex. 1 ¶ 29). Plaintiff used the software program Outlook to read his Access2Go email on his computer at Access2Go. (Shefts Aff. at ¶ 20). Also during the relevant period, there was no policy addressing access to emails sent or received via the Access2Go email system.*fn2 Access2Go is an Illinois corporation, and is governed by its own Bylaws.
In response to his suspicion that Plaintiff was using the Access2Go email system to sexually harass female Access2Go employees, Petrakis directed Shawn Patton of Integrated Computer Resources to create a copy of Plaintiff's Access2Go email account from the Access2Go server, and to store the copy on his laptop computer.*fn3 (Doc. 200, Ex. A at ¶ 5). On September 9, 2008, the Access2Go Board suspended Plaintiff, noting that "1) Shefts advised employees not to sign a non-compete non-disclosure agreement required by Access2Go; 2) Shefts sent confidential information to unauthorized individuals; 3) Shefts sexually harassed Access2Go employees; 4) Shefts made demeaning comments about other Access2Go directors/shareholders to third parties; and 5) Shefts sent confidential information to Access2Go competitors." (Doc. 60, Ex. 7 of Ex. A).
The SCA, also referred to as Title II of the ECPA, creates a cause of action when any person "intentionally accesses without authorization a facility through which an electronic communication service is provided; or intentionally exceeds an authorization to access that facility; and thereby obtains.access to a wire or electronic communication while it is in electronic storage in such system." 18 U.S.C. § 2701(a). Plaintiff argues that the undisputed facts prove that Petrakis violated the SCA by accessing his Access2Go email account between January 1, 2006 and June 18, 2008. Petrakis opposes Plaintiff's claim, arguing that he neither accessed an electronic communication within the terms of the SCA, but that if he did, he had authorization from either Access2Go or Plaintiff.
A. Access to a wire or electronic communication while it is in electronic storage
The SCA protects communications from being "accessed" by someone without authorization while they are in "electronic storage," which includes "any storage of such communication by an electronic communication service for purposes of backup protection of such communication." 18 U.S.C. § 2510(17)(B). Petrakis makes two arguments to show that he did not "access" Plaintiff's communications within the meaning of the SCA prior to June 18, 2008: (1) he did not monitor or access Plaintiff's communications prior to that date, and (2) even if he ...