Man can sue ex for accessing his email

A man can bring a claim for violation of the Stored Communications Act against his ex-girlfriend, who he alleges accessed his personal email after telling her not to do so.

U.S. District Judge Gerald Bruce Lee ruled in Hately v. Torrenzano (VLW 017-3-285) that neither party was entitled to summary judgment and that the case should proceed to trial, even though the plaintiff could not show actual or statutory damages. He still could recover punitives and attorney’s fees, Lee ruled.

Romantic triangle

The parties, Patrick Hately and Nicole Torrenzano, were in a long-term relationship and had two children together. In early 2015, they separated, after Torrenzano started a relationship with another man named David Watts, Hately claimed.

He never shared his password for his email account at the Virginia Community College System, where he worked, with Torrenzano. In fact, he told her not to access his account.

Hately alleged that he received a notice that his password on the VCCS account had been reset. The source was a MacBook traced to Torrenzano’s new paramour, Watts, Lee wrote. She was deposed in Watts’ divorce and admitted accessing Hately’s email accounts.

Hately cited a second instance of access to his email from Winchester Medical Center, where Torrenzano worked.

Lee noted that Hately had alleged violations of a number of computer-crime and abuse statutes, but the only claim to survive was a violation of the Stored Communications Act, 18 U.S.C. § 2701 et seq.

When both sides filed motions for summary judgment, Lee denied them both, saying that the case presenting triable issues of fact.

At the summary judgment stage, the judge said, he considered information and evidence that might need authentication at trial.

“The court and the parties have great flexibility with regard to the evidence that may be used on a summary judgment proceeding,” he wrote.

Torrenzano fought the SCA claim by arguing, among other things, that the email was not “stored” as required by the SCA. But Lee said that Hately might show that the email might remain on servers for backup protection to establish the “electronic storage” requirement. In any event, the judge said it was an issue of fact for the jury.

And on the third line of attack, that Hately had not established any actual damages, Lee agreed that the plaintiff had not shown sufficient evidentiary support to pursue such a claim.

But he said that Hately might be able to establish that Torrenzano’s behavior was “willful or intentional,” entitling him to claim punitive damages and attorney’s fees. An actual damage award is not required for either.

Since the case presents “a triable factual dispute,” Lee wrote, he denied the summary judgment motions. The case moves forward for trial.