Opinion
Case No. 6:20-cv-01946-JD
2022-01-11
Amanda CARSON, f/k/a Amanda Leche, Plaintiff, v. EMERGENCY MD, LLC, David Brancati, Johanna Calgie, and Jason Blasenak, Defendants.
Wesley D. Few, Wesley D. Few LLC, Greenville, SC, for Plaintiff. Robert Mills Ariail, Jr., Patrick Chandler Berg, R. Mills Ariail Jr. Law Office, Greenville, SC, for Defendants Emergency MD LLC, David Brancati, Johanna Calgie.
Wesley D. Few, Wesley D. Few LLC, Greenville, SC, for Plaintiff. Robert Mills Ariail, Jr., Patrick Chandler Berg, R. Mills Ariail Jr. Law Office, Greenville, SC, for Defendants Emergency MD LLC, David Brancati, Johanna Calgie.
ORDER
Joseph Dawson, III, United States District Judge
Plaintiff Amanda Carson, f/k/a Amanda Leche's ("Carson" or "Plaintiff") lawsuit arises out of alleged unauthorized access to her email account containing her personal emails, which she alleges the defendants read, copied, and shared this information with law enforcement and regulatory staff at the Department of Labor, Licensing, and Regulation. Carson brought this action against Defendants Emergency MD, LLC, David Brancati, Johanna Calgie (collectively "EMD Defendants") and Jason Blasenak ("Blasenak") in federal court under 28 U.S.C. §§ 1331, alleging (1) violation of the South Carolina Homeland Security Act ("SCHSA"), S.C. Code Ann. § 17-30-10, et seq., (2) violation of the Stored Communications Act ("SCA"), 18 U.S.C. § 2701, et seq., and (3) invasion of privacy. (DE 1.) The parties have filed cross Motions for Summary judgment on Plaintiff's Stored Communications Act, 18 U.S.C. § 2707, claim. (DE 63 and 59.)
Blasenak is no longer a party to this action pursuant to a Stipulation of Dismissal by Plaintiff and Blasenak. (DE 65.)
Plaintiff also brought causes of action for violation of the Computer Fraud and Abuse Act ("CFAA"), 18 U.S.C. § 1030 et seq., defamation per se, and civil conspiracy, which the Court dismissed on EMD Defendants and Jason Blasenak's motions to dismiss. (DE 22.)
In addition, EMD Defendants also seek Summary Judgment on Plaintiff's remaining State law claims. (DE 59.) Conversely, Plaintiff has filed a Motion for a finding of spoliation of evidence by EMD Defendants (DE 60) and seeking an order to strike EMD Defendants' Answer or an adverse inference jury instruction regarding the destroyed evidence. For the reasons set forth herein, the Court grants EMD Defendants' cross Motion for Summary Judgment (DE 59) on Plaintiff's SCA claim and Plaintiff's SCHSA claim. The Court declines to exercise supplemental jurisdiction over Plaintiff's remaining State law cause of action and pending motions.
BACKGROUND
Plaintiff Amanda Carson worked as a Physician's Assistant for Emergency MD, LLC ("EMD") from February 2014 until approximately May 1, 2017. On October 6, 2016, Plaintiff signed a Code of Conduct and Compliance Plan that governed her relationship with EMD. (DE 59-2, 59-3.) In January 2017, Plaintiff signed an Independent Contractor Agreement that further governed her relationship with EMD. (DE 59-4.) As part of these agreements, Plaintiff specifically agreed to be bound by the company handbook and all company policies. As a company practice, EMD provides all new employees a copy of its company handbook at the outset of their employment. (DE 59-5.) Included in the employee handbook was EMD's Electronics Communication Policy, which provided, in part:
All information created, sent, received, or stored on the company's electronic resources is company property. Such information is not the private property of any employee and employees should have no expectation of privacy in the use or contents of the company's electronic resources. Passwords do not confer any right of privacy upon any employee of the company. Employees should understand that the company may monitor the usage of its electronic resources and may access, review, and disclose information stored on its electronic resources, including messages, personal e-mail communications sent and received on the employer's computers but using private e-mail accounts, and other data, at any time, with or without advance notice to the user or the user's consent.(DE 59-5, Electronic Communications Policy, EMD LECHE FEDERAL 002902-002940.)
Carson alleges that on or about May 1, 2017, her employment with EMD was terminated. (DE 1, ¶ 11.) Carson contends that thereafter EMD Defendants accessed and/or directed others to access her personal email account without authorization, as evidenced by Defendants' printing and publishing her emails in the state court lawsuit in which all parties in the instant matter are involved. (DE 1, ¶¶ 13-14, 22.) However, evidence in the record suggests Carson used a shared desktop computer used by multiple EMD employees to access her personal Gmail account, from which she also sent emails on behalf of EMD, and forgot to log out of her Gmail account. (DE 59-6, Carson Dep. Tr. At 59:1-12, 152:15 - 155:8.) Several weeks after Carson was terminated, EMD personnel opened the shared desktop computer and discovered Plaintiff's open Gmail account. (DE 59-11, Montagnon Dep. 43:24-25-44:1-6.)
Megan Montagano ("Montagano"), an employee of EMD Staffing, LLC, during the time of Plaintiff's employment, also regularly used the shared work computers at EMD. On May 30, 2017, Montagano testified she went to check her email on the shared workspace computer. (DE 59-11, Montagano Dep. 43:24-25 - 44:1-6.) When she woke the computer, the Gmail inbox page was open in the web browser displayed on the screen, and having used the computer regularly, Montagano testified that she believed the web-browser was signed into her own Gmail account. (DE 59-11, Montagano Dep. 51:21-25 - 52:1-13.) Upon closer inspection Montagano noticed several emails she did not recognize. (DE 59-11, Montagano Dep. 51:21-25 - 52:1-13.) Montagano suspected someone may have been in her email account, so she printed out several of the emails that she did not recognize and took them straight to her supervisor, Dr. Jason Blasenak. (DE 59-11, Montagano Dep. 44:24-25 - 45:1-9). Upon examining the documents, Dr. Blasenak pointed out that the documents did not appear to be from her but rather Carson's email account. (DE 59-11, Montagano Dep. - 45:2-16.) Upon hearing this, Montagano testified she went back to the shared work computer where she had initially discovered the emails and immediately logged out of the Gmail account. (DE 59-11, Montagano Dep. 64:6-12.)
Dr. Blasenak noticed several concerning emails in which the Plaintiff had been contacting other medical offices and appeared to be offering to bring over employees, patients, and documents from EMD. (DE 59-12, EMD-Leche 001487-001488.) One of the emails contained the confidential and HIPAA protected information of approximately 214 patients. (DE 59-12, EMD-Leche 001414-001460.) Upon closer inspection, Dr. Blasenak noticed from the emails that the confidential patient information had been sent to EMD's competitors, Oaktree and PMA. (DE 59-12, EMD-Leche 001414-001460.) Plaintiff was still representing herself as an agent of EMD several weeks after her termination. (DE 59-12, EMD-Leche 001414.) On several occasions after her termination, Plaintiff represented herself to PMA and Oaktree executives as a current employee and agent of both EMD and PainMD in both the context of her emails and by using the following signature line: "Lead Physician Assistant, EMD Advanced Urgent Care," and "Chief Operating Officer, PainMD Interventional Pain Medicine." (DE 59-12, EMD-Leche 001414.)
As a result of this surprise discovery, Defendants learned that Plaintiff and her then husband, Dr. Blake Leche, appeared to appropriate confidential information pertaining to EMD's company information, client information, and to solicit employees from EMD with the full knowledge and help from their future employer. (DE 59-12, EMD-Leche 001461, 001466). However, EMD did not act on this information until Dr. Leche, and Konig PM, LLC filed a lawsuit in state court on March 9, 2018, against all four named Defendants in the present case (Civil Action No. 2017-CP-23-01439). EMD then filed the "2018 Complaint" against Third-Party Defendants Amanda Leche (Plaintiff in the present case) and her new employer alleging (1) breach of contract, (2) breach of contract accompanied by fraudulent act, (3) breach of fiduciary duty, (4) tortious interference with contract, (5) civil conspiracy, (6) violation of South Carolina Trade Secrets Act, S.C. Code § 39-8-10 et. seq., and (7) conversion. (DE 59-7, Third-Party Compl.)
Carson asserts that "Defendants made themselves privy to her highly confidential and privileged communications, including her communications with her legal counsel and her prospective legal counsel, about the subject matter of the allegations in this lawsuit." (DE 1, ¶ 14.) Carson initially contended that Defendants read and otherwise accessed every email in the account, Defendants may have made copies of the emails, Defendants may have deleted any notification emails that were sent to the account to notify Carson of login activity on her account, and Defendants shared this information and/or misrepresented it to law enforcement agencies and/or regulatory staff at the Department of Labor, Licensing, and Regulation. (DE 1, ¶¶ 15-18.) However, there appears to be no evidence in the record to support these contentions. Carson specifically testified in her deposition:
Q: Okay. But you have nothing firsthand you can give me today that says you have anything - have any knowledge of them doing anything with those emails?(DE 59-6, Carson Dep. Tr. At 81:22 - 82:7.)
A: I don't have proof, no.
Carson did not send a spoliation or preservation letter to EMD Defendants or their counsel related to the shared work computer as part of this litigation. However, Carson sent a Request for Inspection regarding the shared work computer on February 8, 2021. (DE 80-7, Plaintiff's Request for Inspection to Defendant EMD). On March 17, 2021, Defendants responded to the Request for Inspection asking that Plaintiff supply additional identifying information so that they could determine the specific computer in question requested by Plaintiff. (DE 80-8, Defendant EMD's Response.) EMD Defendants also advised that Carson used several computers at EMD's Boiling Springs location during the relevant time period; however, after reasonable diligence EMD Defendants could not determine the particular computer referred to as the shared work computer that Plaintiff used four years prior. (DE 80-8, Defendant EMD's Response to Plaintiff's Requests for Inspection, pp. 5-6). EMD Defendants specifically asked that Carson provide an IP address or some kind of information from her Gmail metadata that would show an P address or any identifying information for the computer she used the account on and alleges the account was accessed from.
Despite receiving the two lists for the computers containing information that may allow Plaintiff to identify the computer in question, Plaintiff refused to examine or produce her own equivalent metadata extracted from her Gmail account via Google Takeout, refused to use the metadata or assist in attempting to identify an IP address for the specific computer in question, refused to schedule a deposition or issue a subpoena to the third-party IT company Brown Arrow Technologies despite stating their intentions to do so on multiple occasions, and did not file any motions to compel. Plaintiff has not sent a subpoena or request to Google in an effort to investigate alternative information that would show access to her account. Carson did not provide any of the information or metadata requested by Defendants, despite Defendants' requests in their Response to Plaintiff's Request for Inspection and in emails from Defendants' counsel to Plaintiff's counsel seeking cooperation. (DE 80-8, Defendant EMD's Response to Plaintiff's Request for Inspection; 80-9, Email Correspondence between Counsel).
LEGAL STANDARD
Federal Rule of Civil Procedure 56The party seeking summary judgment bears the initial burden of demonstrating that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). "A fact is 'material' if proof of its existence or non-existence would affect disposition of the case under applicable law. An issue of material fact is 'genuine' if the evidence offered is such that a reasonable jury might return a verdict for the non-movant." Wai Man Tom v. Hosp. Ventures LLC, 980 F.3d 1027, 1037 (4th Cir. 2020) (citation omitted). Once the movant has made this threshold demonstration, the nonmoving party, to survive the motion for summary judgment, must demonstrate specific, material facts that give rise to a genuine issue. Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548. Under this standard, 'the mere existence of a scintilla of evidence' in favor of the non-movant's position is insufficient to withstand the summary judgment motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). "Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion." Wai Man Tom, 980 F.3d at 1037.
"Summary judgment cannot be granted merely because the court believes that the movant will prevail if the action is tried on the merits." Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 568 (4th Cir. 2015) (quoting 10A Charles A. Wright et al., Federal Practice & Procedure § 2728 (3d ed. 1998)). The court may grant summary judgment only if it concludes that the evidence could not permit a reasonable jury to return a favorable verdict. "Therefore, courts must view the evidence in the light most favorable to the nonmoving party and refrain from weighing the evidence or making credibility determinations." Variety Stores, Inc. v. Wal-Mart Stores, Inc., 888 F.3d 651, 659 (4th Cir. 2018) (internal quotation marks omitted and alterations adopted). A court improperly weighs the evidence if it fails to credit evidence that contradicts its factual conclusions or fails to draw reasonable inferences in the light most favorable to the nonmoving party. Id. at 659-60.
DISCUSSION
1. Stored Communications Act
Both Carson and EMD Defendants contend in their cross motions for summary judgment that there are no genuine issues of material fact in dispute regarding Carson's SCA claim; and therefore, summary judgment is proper in this case. Section 2701 of the Stored Communications Act "criminalizes and provides a private civil cause of action against anyone who 'intentionally accesses without authorization a facility through which an electronic communication service is provided . . . and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system[.]' " Hately v. Watts, 917 F.3d 770, 783-84 (4th Cir. 2019). Accordingly, to prevail under the SCA, Plaintiff must prove that the defendant (1) accessed a system through which electronic communication service is provided (2) without authorization or had authorization but exceeded its authority in obtaining the information in question; (3) obtained, altered, or prevented access to, a wire or electronic communication while it was in electronic storage; and (4) acted intentionally. See Van Alstyne v. Elec. Scriptorium, Ltd., 560 F.3d 199, 204 (4th Cir. 2009) (quoting 18 U.S.C. § 2701(a)(1)-(2)). As to the first element, the evidence supports and Carson concedes that a third party, Montagano and not the Defendants. "accessed a system through which electronic communication service is provided." (DE 59-6, p. 14); see also 18 U.S.C. § 2701(a)(1)-(2). "The Stored Communications Act defines 'electronic communication service,' as 'any service which provides to users thereof the ability to send or receive wire or electronic communications.' " Hately v. Watts, 917 F.3d 770, 787 (4th Cir. 2019) ("email is a form of 'electronic communication' for purposes of the Stored Communications Act."), see also 18 U.S.C. § 2510(15). Further, the Fourth Circuit has held that previously delivered and opened emails stored by an electronic communication service constitute "wire or electronic communications" which are in "electronic storage." See Hately at 794-98,; see also Ducharme v. Madewell Concrete, LLC, No. 6:20-1620-HMH, 2021 WL 2141728 at *—, 2021 U.S. Dist. LEXIS 99721, at *19 (D.S.C. May 26, 2021). Although an electronic communication service was accessed it was not done by Defendants; and therefore, this element is not met.
Turning to the second element "without authorization," Carson does not provide any evidence of how Defendants could have accessed her Gmail account had it not been left actively logged in by her on the shared work computer. The record indicates only that Montagano printed out the emails when she mistakenly believed that someone was sending emails from her email address. (DE 59-11, Montagano Dep. 52:4-15.) However, there is no evidence to support that EMD Defendants knew her password or surreptitiously gained access to Carson's login information to view her emails on the shared computer. Without such evidence, coupled with Carson's admission that she could have accidently left her Gmail account logged in on the computer and that it was not uncommon for her to leave her email account logged in while she was employed at EMD (DE 59-6, Carson Dep. 154:10-18), Carson's argument that EMD's access was without authorization is fatally flawed and not met.
Next, the parties dispute whether EMD Defendants obtained electronic communication while it was in electronic storage because Defendants contend they "only . . . received and interacted with physical paper documents that Montagano printed out." (DE 59-1, p. 20.) It is unnecessary to resolve this dispute because the Court finds that the EMD Defendants did not "act intentionally" to access her account in violation of the SCA. The record shows that there is no evidence that Defendants had the ability, means, or intent to log into Plaintiff's Gmail account. Nevertheless, Carson claims the intentional SCA violation occurred when Montagano selected, opened, printed, and shared her emails and did not advise Carson of EMD's ability to read (and to continue to read) the personal emails, and exceeded any alleged authorizations to access her Gmail, and maintained the ability to continue to do so indefinitely. (DE 63, p. 5.) Without more, this argument taken as true cannot survive summary judgment on Plaintiff's SCA claim.
First, the only individual who ever interacted with Plaintiff's Gmail account (Montagano) clearly did so inadvertently. Second, Plaintiff has not offered any other testimony of other access to her emails by Defendants, despite opportunities to do so during discovery. While Congress expressed its "judgment that users have a legitimate interest in the confidentiality of communications in electronic storage at a communications facility[ ]" that expressed intent does not absolve Plaintiff of her obligation to safeguard her communications from third parties especially on shared computers. See United States v. Simons, 206 F.3d 392, 398 (4th Cir. 2000) ("And, in order to prove a legitimate expectation of privacy, [a party] must show that his subjective expectation of privacy is one that society is prepared to accept as objectively reasonable."). Moreover, EMD's company policies in place at the time specifically stated that the company may access, review, and disclose personal email communications sent and received on the employer's computers. Therefore, the Court grants EMD Defendants summary judgment on Carson's SCA claim and denies Plaintiff's Motion for Summary Judgment for the same reasons.
2. South Carolina Homeland Security Act
In addition, EMD Defendants move for summary judgement on Plaintiff's SCHSA claim because they contend Plaintiff has not shown that Defendants "intercepted" an electronic communication as set out under the statute. (DE 59-1, p. 10.) This Court agrees. The SCHSA provides that "[a]ny person whose wire, oral, or electronic communication is intercepted, disclosed, or used in violation of this chapter has a civil cause of action . . . ." S.C. Code Ann. § 17-30-135(A). Moreover, the SCHSA's list of prohibited acts require interception. See S.C. Code Ann. § 17-30-20. The SCHSA defines "intercept" as "the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device." S.C. Code Ann. § 17-30-15(3). Applying the reasoning of the ECPA here, a qualifying "intercept" "can only occur where an e-mail communication is accessed at some point between the time the communication is sent and the time it is received by the destination server." Ducharme v. Madewell Concrete, LLC, No. 6:20-1620-HMH, 2021 WL 2141728 at 8, 2021 U.S. Dist. LEXIS 99721 (D.S.C. May 26, 2021) (citing Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 878 (9th Cir. 2002)).
The SCHSA is patterned after Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended by Title I of the Electronic Communications Privacy Act of 1986 ("ECPA"), 18 U.S.C. § 2510 et seq. See State v. Whitner, 399 S.C. 547, 732 S.E.2d 861, 863 (2012). "Although the Fourth Circuit has not directly ruled on this issue, other circuit '[c]ourts applying the ECPA have consistently held that a qualifying 'intercept' occurs only where the acquisition of the communication occurs contemporaneously with its transmission by its sender." Ducharme v. Madewell Concrete, LLC, No. 6:20-1620-HMH, 2021 WL 2141728 at 8, 2021 U.S. Dist. LEXIS 99721 (D.S.C. May 26, 2021) quoting, Glob. Pol'y Partners, LLC v. Yessin, 686 F. Supp. 2d 631, 638 (E.D. Va. 2009) (collecting cases).
Here, "Plaintiff acknowledges that she has not established any evidence of actual instantaneous interception of her emails." (DE 82, p. 19.) Nonetheless, Plaintiff relies on EMD Defendants' alleged ability to access and review the Plaintiff's emails as soon as they were received in the Plaintiff's inbox, or as soon as they were sent by the Plaintiff, both in May of 2017, and thereafter. (DE 82, p. 19.) Since Carson has not offered any evidence that EMD Defendants intercepted email messages during their transmission either to or from Plaintiff's personal email account before the messages reached their destination, her claims do not trigger a violation of the SCHSA because any alleged interception was not contemporaneous with its transmission. Accordingly, EMD Defendants' Motion for Summary Judgment on Carson's SCHSA claim is granted.
CONCLUSION
For the foregoing reasons, EMD Defendants' cross Motion for Summary Judgment (DE 59) on Plaintiff's SCA claim and Plaintiff's SCHSA claim is granted, and Plaintiff's Motion for Summary Judgment (DE 63) is denied. Pursuant to 28 U.S.C. § 1367(b)(3), this Court declines to exercise supplemental jurisdiction over Plaintiff's remaining State law cause of action and/or pending motions; and therefore, this case is dismissed without prejudice.
IT IS SO ORDERED.