The opinion of the court was delivered by: Joe Billy McDADE United States Senior District Judge
Thursday, 21 February, 2013 08:20:39 AM
Clerk, U.S. District Court, ILCD
This matter is before the Court on the parties' briefs on damages. (Docs. 260, 261, 264 & 265). This Order resolves a number of issues relating to the calculation of damages, should liability be found. It assumes, for the purpose of analysis only, that the jury will find in Plaintiff's favor as to each claim and against each Defendant, though such assumption is made, of course, without prejudice to Defendants' arguments against liability.
Aside from these legal questions regarding the calculation of damages, there is an additional issue the Court wishes to resolve in this Order: the status of Count III of the Amended Complaint, which arises under the SCA. Plaintiff originally claimed that Defendants had violated the SCA by accessing his Access2Go email, his Blackberry text messages, and his Yahoo! email. The Court has already determined that Plaintiff cannot recover for Defendants' conduct as to the Access2Go email and Blackberry text messages. (Docs. 249 & 268). The Court had assumed that Plaintiff intended to persist with the Yahoo! SCA claim, but did not address whether it was viable because the parties had not litigated that question. (Doc. 268 at 1 n. 1, 12-13). Having reviewed Plaintiff's initial brief on damages (filed prior to the recent ruling on the text messages claim) more closely, to the Court it appears that he only seeks damages as to Defendants' alleged accession of his Blackberry text messages, not the Yahoo! email messages; he appears to have dropped the SCA claim as to the Yahoo! email messages. (Doc. 261 at 8). If Plaintiff has indeed dropped the SCA claim as to the Yahoo! emails, there are no issues remaining to be tried under Count III of the Amended Complaint. If Plaintiff disagrees with this reading of his damages brief, he must notify the Court within seven days of the date of this Order.
As the Court explained in its last Order, the parties' first briefs on damages raised a number of legal issues that are beneficially resolved prior to trial:
Plaintiff's brief raised two related questions: (1) under the ECPA, Plaintiff alleges that Defendants intercepted both his Access2Go email and his Yahoo! email, by two separate mechanisms, and he claims that he should be permitted to recover for each of these alleged violations separately; and (2) also under the ECPA, Plaintiff multiplies his damages calculation for each violation by three, as there are three Defendants. . Defendants' brief raised [the issue of] whether, under the ECPA, the fact that Plaintiff does not seek actual damages will or should prevent his recovery of attorney's fees. (Doc. 263 at 5).*fn1 The Court therefore allowed each party to respond to these points in its opponent's brief, and those responses have now been filed. The Court also permitted the parties to raise any additional damages issue that they believed could be efficiently resolved prior to trial, and Defendants have accordingly raised the question of whether district courts have the discretion to deny an award of statutory damages under the ECPA, citing DirectTV, Inc. v. Barczewski, 604 F.3d 1004 (7th Cir. 2010).
I. Should separate damages be awarded to Plaintiff under the ECPA for both the interception of his Access2Go email and his Yahoo! email?
Defendants argue that Plaintiff should only be permitted to recover damages for the time period during which they were intercepting his communications, and that the damages calculation should not take into account that there were two separate violations of the ECPA alleged during that time period. The Court agrees with Plaintiff's position. Plaintiff has two separate claims under the ECPA: that the Defendants intercepted his Access2Go email, and that they intercepted his Yahoo! email. These two claims cover two distinct sets of communications, and allege that Defendants used two different mechanisms to carry out the interception. The fact that Plaintiff put these two claims together under the heading of "Count I" was merely an organizational device reflecting the fact that both arise under the ECPA. However, he could have just as easily separated the two claims into two separate "counts."
Defendants rely on Desilets v. Wal-Mart Stores, Inc., 171 F.3d 711, 714 (1st Cir. 1999) to argue that the number of violations is irrelevant to the calculation of damages under the ECPA, but this reliance is misplaced. In Desilets, the district court erred in awarding damages separately for the defendant's interception and unlawful use of the communications at issue. The First Circuit's analysis, though, addressed the fact that the two "types" of violations were actually "interception" and "unlawful use," but did not deal with a situation in which the defendants unlawfully intercepted or used different kinds of communications in different ways. Both Desilets and Smoot v. United Transportation Union, 246 F.3d 633, 642-646 (6th Cir. 2001), focus only on the fact that the ECPA prohibits unlawful interception, unlawful disclosure, and unlawful use of the communications, and correctly explain that the statutory language of the ECPA does not permit separate awards of damages for each of these types of violations. Where only one type of communication is intercepted and/or disclosed and/or misused, tying damages to the number of days those violations occurred, rather than the number of violations per day, makes sense. See Smoot, 246 F.3d at 646 (statute should be interpreted to avoid "treating one disclosure and one use differently from two interceptions").
The instant situation is quite different, and neither Desilets nor Smoot addresses it: here, it is not simply that the statute contemplates different types of violations, it is that different types of communications and different mechanisms for their interception are concerned.*fn2 Defendants cite no cases in which a court faced the allegation that a defendant had undertaken to invade the plaintiff's privacy in as many fora as it could reach, using several different technical mechanisms, and this Court does not find that either the language of the ECPA or the cases of Desilets and Smoot require the courts to withhold statutory compensation from a plaintiff who has suffered completely separate invasions of his privacy.
Therefore, if liability under the ECPA is found as to both the Access2Go email and the Yahoo! email, and if the Court decides that an award of damages for both violations are appropriate (see discussion under "III," infra) the Court will permit Plaintiff to recover damages for both violations. In other words, the period during which Defendants unlawfully intercepted Plaintiff's Access2Go email will result in one damages calculation, and the period during ...