Stored Communications Act Claim Survives Summary Judgment In Social Media Account Hijacking Case

Maremont v. Fredman, 2014 WL 812401 (N.D.Ill. 2014) examines an employee’s claims under the Stored Communications Act (18 U.S.C. § 2701)(the “SCA”) where the employer accessed the employee’s social media accounts     that she used for both personal and business purposes.

The Court found that plaintiff submitted evidence to raise triable fact questions on each element of the Complaint’s SCA count. 

The SCA aims to deter computer hacking and gives a private right of action to someone whose private electronic information is intentionally breached. 

The SCA plaintiff must establish that the defendant either (a) intentionally accessed the plaintiff’s private computer communication or (b) intentionally exceeded authorized access and obtained, altered or prevented authorized access to plaintiff’s private communications. *6.

For their part, the Defendants argued that Plaintiff voluntarily provided her Twitter and Facebook password information so that Defendants could continue marketing their company from plaintiff’s pages. 

Plaintiff disputed this: she claimed that she kept her Twitter and Facebook passwords in a locked electronic folder on Defendants’ server.  This fact dispute led the court to deny summary judgment on the SCA claim.

Another disputed fact question concerned plaintiff’s damages.  The SCA provides for both actual damages and minimum statutory damages of $1,000.  The case law is in flux as to whether actual damages are required before a plaintiff can recover the statutory minimum damages.  The Court looked to other jurisdictions to find that an SCA plaintiff  does not have to first prove actual damages (e.g. medical bills, lost wages, pain/suffering, etc.) before she can recover statutory damages.

But the Court still found plaintiff raised a disputed and triable fact question on actual damages.  Plaintiff, her husband and her father all testified to plaintiff’s acute mental anguish in the wake of Defendants’ unauthorized Tweeting and Facebooking barrage.  Under Federal Rule of Evidence 701 – witness observations of the Plaintiff’s mental distress was competent “lay opinion testimony”, based on the witnesses’ personal observations.  *7.

Take-aways: Clearly a pro-employee ruling; at least on the SCA claim.  The plaintiff not only stored her computer information on her employer’s computer server, but several witnesses for defendants also claimed that plaintiff willingly gave out her account passwords so that defendants could use the accounts as a marketing platform. 

Still, the Court found that plaintiff’s privacy and commercial interest (the Court found that plaintiff could enhance her reputation in the design community via social media) in her Twitter and Facebook accounts trumped the employers’ right to access those accounts. 

Construction Contract Ambiguity: Court Considers Expert Testimony To Clarify Contract Terms

imageA construction site injury provides the setting for the First District’s recent application of Illinois contract interpretation rules to the question of when and how contracting parties’ prior course of dealing can inform the court’s analysis of an ambiguous written agreement.

In Gomez v. Bovis Lend Lease, 2013 IL App (1st) 130568, the plaintiff plumbing subcontractor was injured when he fell through a floor gap known in the trade as an “infill” while working on the construction of the 102-story Trump Tower in Chicago.  He sued the project manager and general contractor who in turn, filed a third-party complaint against the concrete forms subcontractor for breach of a written concrete flooring contract.

The flooring contract required the subcontractor to provide “designs, drawings and technical support” for the concrete forming systems. The parties (the general contractor and the concrete subcontractor) had worked together several times in the past.  In these prior projects, the subcontractor never provided any infill design services or technical support to the general contractor.  The trial court granted the subcontractor’s motion for summary judgment on the basis that the subcontractor wasn’t obligated to provide support for the infill areas.

Held: Affirmed

In siding with the subcontractor, the First District applied several key contract interpretation and enforceability principles:

–  The court must give effect to the parties’ intentions when interpreting a contract;

– The best indication of the parties’ intent is the plain meaning of the contract’s language which must be interpreted in light of the contract as a whole;

 – A contract is ambiguous where it’s subject to more than one reasonable interpretation;

 – If a contract’s ambiguous, extrinsic evidence may be used to interpret it;

 – If the contract is unambiguous, extrinsic evidence may not be used to interpret it;

–  Mere disagreement over contract terms doesn’t equate to ambiguity;

– If a contract contains an integration clause, a court may not use extrinsic evidence to interpret the contract;

– But if the contract’s ambiguous, the integration clause will not preclude consideration of extrinsic evidence;

Gomez, ¶¶ 13-14, 25-26.

The Court found the subject contract ambiguous.  While the contract was detailed in its delineation of the subcontractor’s design, drawing, calculation and technical support requirements, it was silent on what if any obligations the subcontractor had for an infill area, which was the location of the plaintiff’s injury.  The court considered extrinsic evidence including expert affidavit testimony on the parties’ previous projects to determine the scope of the subcontractor’s obligations.

The subcontractor’s summary judgment evidence showed that in the parties’ prior 20 or so projects, neither the general contractor nor the project manager ever asked the subcontractor to provide design or support for infill areas.  Because of this, the Court held that the parties’ past dealings and their course of performance on the Trump Tower project conclusively showed that the concrete subcontractor had no contractual responsibility for the infills.  The Court affirmed summary judgment for the subcontractor on the general contractor’s contribution claim.  Gomez, ¶¶18-19, 30.

Take-away: Gomez presents a good summary of some fundamental and prevalent Illinois contract interpretation principles.  The case specifies that where a contract is ambiguous, a court will consider evidence – namely, expert testimony – of the contracting parties’ prior dealings as well as their course of performance on the same project in order to give content to an unclear contract term.

Requests to Admit in Illinois: How and When To Respond (The 28-Day Rule)

I once read a tongue-in-cheek article that said if you’re ever served with a Request to Admit Fact (RTA), you should staple it to your forehead. (Ouch!)

That way, you won’t forget about the RTA and miss the 28-day deadline to send your sworn responses to the opposing side.  And while some recent cases may have softened Illinois’ draconian RTA rules, the hyperbolic sentiment expressed in the “staple statement” endures: a failure to timely respond to an RTA can have grave consequences for your case.  The main one being that the facts (or documents) contained in the RTA can be deemed admitted against you.

Once that happens, the party sending the RTA can move for summary judgment and win all or most of his case.

Armagan v. Pesha, 2014 IL App (1st) 121840 examines the question of when the 28-day timing requirement starts and ends and when the service of and response to an RTA is deemed complete under Illinois law.

The plaintiff deposited over 250 gold coins with the defendants who operated a rare coin shop.  Plaintiff alleged he placed the coins with the defendants temporarily with the understanding that plaintiff could always get them back.  Several months later when plaintiff asked for the coins back, defendants apparently refused and plaintiff sued for conversion, breach of bailment and other claims.

During discovery, plaintiff mailed an RTA on defendants on November 18, 2010.  Defendants filed their response with the court on December 17, 2010 (29 days later) and mailed the response to plaintiff that same day.  Plaintiff then moved to deem the RTA facts admitted on the basis that defendant missed the 28-day deadline by one day.

The trial court agreed (November 18 service is complete November 22, 2010; December 17, 2010 service is complete on December 21, 2010 – 29 days after November 22, 2010), deemed the facts admitted and entered summary judgment for plaintiff for almost $500,000.  An expensive, one-day mistake to be sure.  Defendants appealed.

Held: Trial Court reversed.  Defendants’ RTA response was timely under Illinois Supreme Court Rule 12.

The First District found that defendants timely responded to the RTA.  In doing so, the Court discussed the interplay between Supreme Court Rules 216, 12 and 11 which govern RTAs and the manner of serving documents. The key rules:

– the purpose of Rule 216  is to narrow issues for trial and only requires the responding party to serve his responses within the 28-day deadline; as opposed to filing them with the court within 28 days;

– Rule 216 requires only that the RTA responses be served (by the responding party), not received (by the requesting party) within 28 days;

– failing to comply with Rule 216’s requirements can result in a judicial admission of the facts contained in the RTA;

– Under Rule 12(c), service is complete four (4) days after mailing;

– the method of service differs from proof of service;

– serving a document by U.S. mail is an acceptable method of service; 

– Rule 11 specifically allows a party to serve documents (other than complaint) by U.S. mail (“regular” mail);

¶¶ 16-20.

Application: Plaintiff mailed his RTA on November 18, 2010.  Under Rule 12, service of the RTA was complete on November 22, 2010 – four days later.  Defendants then had 28 days – through December 20, 2010 – to serve their response.  Since defendants served their RTA response by placing it in the mail on December 17, 2010, they complied with the 28-day deadline (with three days to spare). ¶ 23.

Policy concerns also motivated the Court’s reversal.  It noted that Illinois has a broad policy of cases being resolved on the merits instead of technicalities and that discovery is not designed for tactical gamesmanship or a trap for the unwary.  Accordingly, the Court would have allowed the defendants response even if it was late under Rule 183 (which governs extension of time for “good cause”).  ¶¶ 25-26.

Take-aways: A Request to Admit is the quintessential “gotcha” discovery device.  The serving party hopes you will blow the 28-day deadline and then do exactly what the plaintiff did here: try to get the facts deemed admitted against you.

This case seems to strike a fair balance between giving teeth to a discovery tool while at the same time being willing to look at the realities of litigation practice, where the exigencies of the moment practically dictate last-minute responses.

In hindsight, the defendants’ attorney probably should have hand-delivered and faxed (and e-mailed) his response instead of mailing it.  That would have saved him a lot of time and (I imagine) frantic energy trying to undo the $500,000 judgment against his client.