eDiscovery Case of the Week: Lazette v. Kulmatycki

By Julia Romero Peter, Esq.

In a case where a supervisor read e-mails from a past employee’s personal gmail account, the court found that such conduct fell within the scope of the Stored Communications Act (SCA).  In Lazette v. Kulmatycki, No. 3:12CV2416, 2013 U.S. Dist. (N.D. Ohio June 5, 2013), Defendant supervisor Kulmatycki read 48,000 of Plaintiff’s personal e-mails accessed on a company blackberry Plaintiff returned upon leaving her job.  The court found that the SCA applied to those e-mails that Kulmatycki opened prior to Plaintiff. 

When Plaintiff’s former employer Verizon provided her with the blackberry, she was informed that she could use it for personal e-mail.  When she returned the blackberry, she thought she had removed her personal gmail account from the device.  She understood that the company would give the blackberry to another employee.  Plaintiff later discovered that Kulmatycki had accessed her gmail account for 18 months.  Plaintiff had not authorized this conduct.

An offense is punishable under the SCA if one “(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or (2) 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.”  The statute provides an exception “with respect to conduct authorized — (1) by the person or entity providing a wire or electronic communications service . . . .”  The SCA defines “electronic storage” as “(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication.”

Defendants argued that Kulmatycki’s conduct did not violate the SCA based on the following:

• The SCA was not applicable, because Congress intended the legislation to target “‘high-tech’ criminals, such as computer hackers;”

• Kulmatycki had authority to access Plaintiff’s gmail account, because Kulmatycki used a company device and Plaintiff had not specifically said to Kulmatycki not to access her account and “implicitly consented to his access by not deleting her g-mail account”;
• “Kulmatycki’s access did not occur via ‘a facility through which an electronic communication service is provided’ other than the company owned blackberry;
• The e-mails were not in electronic storage when Kulmatycki read them;” and
• Verizon was exempt under the SCA, because essentially it was the “provider of electronic communication services” referred to in the statute’s exception above.  Defendants argued that the complaint failed to clarify that Plaintiff’s personal gmail account was distinct from her company email account.

The court rejected almost all of Defendants’ arguments. First, the court found “unpersuasive” “Defendants’ reading of congressional intent and the case law with regard to whether the SCA” applied in the instant case.  Second, the court concluded, “the mere fact that Kulmatycki used a company-owned blackberry to access plaintiff’s e-mails does not mean that he acted with authorization when he did so.”  Further, with respect to Defendants’ contention that Plaintiff’s negligence in not deleting her g-mail account “deprive[d] her of any claim under the SCA”; the court concluded “[n]egligence is . . . not the same as approval, much less authorization.  There is a difference between someone who fails to leave the door locked when going out and one who leaves it open knowing someone [will] be stopping by.”  Third, the court concluded that “the ‘electronic communications service’ resided in the g-mail server, not the blackberry, and the g-mail server, not the blackberry, was the ‘facility’” within the meaning of the SCA.  Finally, the court overruled Defendants’ motion to dismiss Verizon.

But with respect to Defendants’ fourth point, the court found that Kulmatycki’s SCA violation only applied to those e-mails he opened before Plaintiff.  “[O]nly e-mails awaiting opening by the intended recipient are within [the] definition” of “electronic storage” under the SCA.