Whalen et al v. SEI/Aaron's, Inc. et al
Filing
170
OPINION AND ORDER GRANTING Defendant SEI/AARON'S, INC.'S 97 Motion for Summary Judgment as to all of Cason and Krises' claims; GRANTING IN PART AND DENYING IN PART 104 Motion to Exclude the Testimony of Micah Sherr and DENYING 111 Motion to Exclude the Testimony of Michael Maschke. Signed by Judge Thomas W. Thrash, Jr. on 8/18/17. (jkl)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
KAREN KRISE, et al.,
Plaintiffs,
v.
CIVIL ACTION FILE
NO. 1:14-CV-1209-TWT
SEI/AARON'S, INC.
a franchisee of Aaron's, Inc.
doing business as
Aaron's Sales and Leasing, et al.,
Defendants.
OPINION AND ORDER
The Plaintiffs Karen Krise, Corie Cason, Chauncey Robertson, Sr., and Jamie
Robertson allege that the Defendant SEI/Aaron’s, Inc. – a franchisee of Aaron’s, Inc.
– unlawfully accessed their computers from a remote location and collected private
information stored therein. It is before the Court on the Defendant’s Motion for
Summary Judgment [Doc. 97], Motion to Exclude the Testimony of Micah Sherr
[Doc. 104], and Motion to Exclude the Testimony of Michael Maschke [Doc. 111].
For the reasons set forth below the Defendant’s Motion to Exclude the Testimony of
Micah Sherr [Doc. 104] is GRANTED in part and DENIED in part; the Defendant’s
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Motion to Exclude the Testimony of Michael Maschke [Doc. 111] is DENIED; and
the Defendant’s Motion for Summary Judgment [Doc. 97] is GRANTED.
I. Background
The Defendant SEI/Aaron’s, Inc. (“SEI”) – a Georgia corporation with its
headquarters in Atlanta, Georgia – is in the rent-to-own business.1 Between 2010 and
2011, it operated approximately seventy franchise stores, which were located in
Connecticut, Kentucky, Maine, Massachusetts, New Hampshire, New York, Rhode
Island, and Vermont.2 From October 5, 2010 to December 27, 2011, the Defendant
installed a software program – PC Rental Agent (“PCRA”) – on all computers it
leased to its customers.3 PCRA, which was owned by a company named
DesignerWare, enabled the Defendant to “render a computer inoperable” by simply
logging onto the DesignerWare website and placing a computer on “lockdown”
mode.4 Once the computer was locked, a customer could not use it and had to contact
an SEI store to have the computer unlocked.5 On August 8, 2011, DesignerWare
1
Pls.’ Statement of Facts ¶ 21.
2
Def.’s Statement of Facts ¶ 1.
3
Id. ¶ 3.
4
Id. ¶ 10.
5
Id.
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added a geolocation feature to PCRA.6 This feature “directed the PCRA software
installed on a computer to include the Wi-fi signals the computer picked up in its
periodic reports.”7 Finally, DesignerWare offered the “Detective Mode” feature on
computers with PCRA installed.8 Detective Mode could be remotely installed and
activated, and once activated, it could capture keystrokes in addition to the content of
the computer screen and clipboard.9 Any data captured by Detective Mode would
automatically be sent every two minutes to a designated email address.10
The Defendant states that it maintained a policy of informing customers during
the lease closing that PCRA was installed on their computers, and that the software
enabled SEI to track, monitor, and lock down the leased computers.11 Moreover,
according to the Defendant, each customer signed an Addendum to the lease
6
Id. ¶ 34.
7
Id. ¶ 35. It is undisputed that SEI never attempted to track any of the
Plaintiffs’ computers using the geolocation feature. Id. ¶¶ 105, 143.
8
Id. ¶ 11.
9
Id. ¶ 12. It is undisputed that PCRA, by itself, could not capture this type
of data. Id. ¶ 14.
10
Id. ¶ 12.
11
Id. ¶ 18.
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agreement acknowledging that he or she was aware of the software’s capabilities.12
The Defendant also contends that it retained ownership of each computer until a
customer exercised one of two purchase options.13 In adherence to SEI policy, the
Defendant asserts that the general manager of each SEI store had the credentials to log
onto the DesignerWare website and lock down a computer.14 For Detective Mode,
only the district managers and SEI’s Director of Operational Support, Tennyson Cox,
had the log in credentials to install and activate the feature.15 The Defendant stopped
using Detective Mode on May 6, 2011.16 On or about January 23, 2012, the Defendant
removed PCRA from all leased computers connected to the internet.17
The Plaintiffs Chauncey Robertson, Sr. and Jamie Robertson leased their laptop
on October 7, 2010 from an SEI store in Meriden, Connecticut.18 According to the
12
Id. The Plaintiffs deny signing the Addendum. Pls.’ Resp. to Def.’s
Statement of Facts ¶ 19.
13
Def.’s Statement of Facts ¶ 21.
14
Id. ¶ 22.
15
Id. ¶ 26.
16
Id. ¶ 31.
17
Id. ¶ 37.
18
Id. ¶ 49.
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Defendant, Ms. Robertson executed the lease documents, including the Addendum.19
The Plaintiffs deny that Ms. Robertson signed the Addendum.20 On November 9,
2010, SEI activated Detective Mode on the Robertsons’ computer.21 Detective Mode
was deactivated on November 10, 2010.22 The Defendant characterizes the activation
as an error. It states that a different customer reported his computer as stolen, and SEI
was attempting to locate that computer by activating Detective Mode.23 The Defendant
contends that the mix up occurred because the computers were the same brand with
a similar or identical model number.24 The Plaintiffs counter that the activation was
not in error.25 Beyond the Detective Mode activation, the Robertsons contend that
their computer was slow and eventually returned the computer on June 27, 2011.26
19
Id. ¶ 51.
20
Pls.’ Resp. to Def.’s Statement of Facts ¶ 51.
21
Def.’s Statement of Facts ¶ 61.
22
Id. ¶ 65.
23
Id. ¶¶ 53, 61-62.
24
Id. ¶ 62.
25
Pls.’ Resp. to Def.’s Statement of Facts ¶ 65.
26
Def.’s Statement of Facts ¶¶ 70, 77.
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The Plaintiff Corie Cason leased her computer on March 4, 2011, from an SEI
store in Buffalo, New York.27 The Defendant asserts that Cason executed both the
computer lease agreement and the Addendum, but it does not possess either
document.28 The Plaintiffs deny that Cason signed the Addendum.29 Similar to the
Robertsons, Cason contends that her leased computer was “sluggish.”30 Based on the
computer’s allegedly slow speed, Cason brought it in for service in 2012 and 2014.31
She eventually returned the computer to SEI in March of 2014.32 The Defendant
contends that, in 2011, only three months after she leased the computer, Cason learned
about PCRA through a news article and the Plaintiffs’ counsel’s website.33 Yet, she
chose to keep the computer until 2014.34 Cason testified that she learned about PCRA
27
Id. ¶ 85.
28
Id. ¶ 86.
29
Pls.’ Resp. to Def.’s Statement of Facts ¶ 87.
30
Def.’s Statement of Facts ¶ 90.
31
Id. ¶¶ 96-97.
32
Id. ¶ 100.
33
Id. ¶¶ 91-92.
34
Id. ¶ 94.
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through a news article and website, but could not recall what date she learned about
PCRA.35
The Plaintiff Karen Krise leased her computer on August 24, 2011, from an SEI
store in Massena, New York.36 The Defendant asserts that Krise signed the PCRA
Addendum on the same day she leased her computer.37 The Plaintiffs, however,
dispute this account. Krise denies that she signed the Addendum at the time of the
lease.38 Soon after leasing the computer, Krise began to make late and/or partial lease
payments.39 Because of the late payments, on October 14, 2011, SEI placed Krise’s
computer in lockdown mode.40 That same day, Krise made her lease payment and was
given a code to unlock the computer.41 Krise alleges that, on October 13, 2011, using
the leased computer, she set up an E-bay auction that was scheduled for the next day.42
She claims that once she unlocked her computer, all of her data had been deleted and
35
Pls.’ Resp. to Def.’s Statement of Facts ¶ 93.
36
Def.’s Statement of Facts ¶ 106.
37
Id. ¶ 107.
38
Pls.’ Resp. to Def.’s Statement of Facts ¶ 107.
39
Def.’s Statement of Facts ¶¶ 110-16.
40
Id. ¶ 119.
41
Id. ¶ 120.
42
Id. ¶ 117.
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the computer had been restored to factory settings.43 Because her computer data was
deleted and she was unable to use her computer while on lockdown, Krise alleges that
she lost potential E-bay bids.44 Then, on October 15, 2011, Krise went on Herman
Gerel’s website, “webcamlawsuits.com.”45 There, she learned about PCRA and the
litigation surrounding use of the software.46 Despite the potential presence of the
software, Krise kept the computer until December 19, 2011.47 Krise, however,
contends that between October and December she rarely used the computer and would
cover the webcam with tape.48
On April 23, 2014, the Plaintiffs filed a class action complaint against SEI.
They seek to represent a class of “(a) all persons who have purchased, leased, and/or
rented (“Lease-Purchase” or “Lease-Purchased”) from SEI personal computers on
which PC Rental Agent had been installed without such persons’ consent, and (b) all
members of each such person’s household.”49 The Plaintiffs allege that SEI did not
43
Id. ¶ 121.
44
Id. ¶ 124.
45
Id. ¶ 131.
46
Id.
47
Id. ¶ 139.
48
Pls.’ Resp. to Def.’s Statement of Facts ¶ 134.
49
Second Am. Compl. ¶ 1.
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disclose to its customers that it installs PCRA on its leased computers or that it used
Detective Mode to obtain data from the computers.50 Furthermore, they allege that
PCRA harmed the leased computers by, among other things, making them slow.51
They allege five counts, including invasion of privacy; computer trespass, O.C.G.A.
§ 16-9-93(b); computer invasion of privacy, O.C.G.A. § 16-9-93(c); and violation of
the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. § 2511.52 The
Defendant now moves for summary judgment on each of the Plaintiffs’ claims.53
II. Legal Standards
A. Daubert Motion
Federal Rule of Evidence 702 governs the admission of expert opinion
testimony. Pursuant to that rule, before admitting expert testimony a court must
consider: (1) whether the expert is competent to testify regarding the matters he
intends to address; (2) whether the methodology used to reach his conclusions is
sufficiently reliable; and (3) whether the testimony is relevant, in that it assists the jury
50
Id. ¶ 3.
51
See Pls.’ Resp. Br., at 31-32.
52
Second Am. Compl. ¶¶ 51-74.
53
[Doc. 97].
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to understand the evidence or determine a fact in issue.54 In ruling on the admissibility
of expert testimony, “[t]he focus must be ‘solely’ on the expert’s ‘principles and
methodology, not on the conclusions that they generate.’”55 If the expert predicates his
testimony on an assumption that is belied by the evidence, the expert’s testimony is
properly excluded.56 The party offering the expert's testimony has the burden to prove
it is admissible by a preponderance of the evidence.57
B. Motion for Summary Judgment
Summary judgment is appropriate only when the pleadings, depositions, and
affidavits submitted by the parties show no genuine issue of material fact exists and
that the movant is entitled to judgment as a matter of law.58 The court should view the
evidence and any inferences that may be drawn in the light most favorable to the
54
Fed. R. Evid. 702; Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,
589 (1993).
55
KW Plastics v. United States Can Co., 131 F. Supp. 2d 1289, 1292 (M.D.
Ala. 2001) (quoting Daubert, 509 U.S. at 594-95).
56
Ferguson v. Bombardier Services Corp., 244 Fed Appx. 944, 949 (11th
Cir. 2007).
57
Allison v. McGhan Medical Corp., 184 F.3d 1300, 1306 (11th Cir. 1999).
58
FED. R. CIV. P. 56(a).
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nonmovant.59 The party seeking summary judgment must first identify grounds to
show the absence of a genuine issue of material fact.60 The burden then shifts to the
nonmovant, who must go beyond the pleadings and present affirmative evidence to
show that a genuine issue of material fact does exist.61 “A mere ‘scintilla’ of evidence
supporting the opposing party’s position will not suffice; there must be a sufficient
showing that the jury could reasonably find for that party.”62
III. Discussion
A. Daubert Motions
1. Micah Sherr
The Defendant moves to exclude the testimony of the Plaintiffs’ expert Micah
Sherr. The Defendant does not challenge Sherr’s qualifications. Instead, the Defendant
contends that Sherr’s testimony fails to satisfy the relevance prong, because he did not
apply his principles and methods reliably to the facts of the case. The Defendant
asserts that Sherr’s opinions regarding the ECPA are unreliable because they are based
on an incorrect legal standard. The ECPA is only applicable to electronic
59
Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970).
60
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
61
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
62
Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990).
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communications that are intercepted, meaning acquired “contemporaneous with
transmission.”63 The Eleventh Circuit defines “contemporaneous with transmission”
to mean the electronic communication is captured “in flight.”64 The Defendant states
that Sherr’s reports and testimony do not apply the “in flight” standard. Specifically,
SEI argues that “Sherr opines that a communication can be ‘intercepted’ for purposes
of the ECPA if it is captured ‘in close time proximity’ to transmission, rather than
during transmission.”65 In response, the Plaintiffs assert that Sherr is not creating a
different legal standard, and that Sherr’s testimony should not be excluded merely
because he did not use the phrase “in flight.”66 They point out that Sherr testified that
Detective Mode’s functions could capture electronic information contemporaneously
with its transmission.67
The Court finds that the expert Sherr’s opinion should not be excluded. Some
courts have concluded that receipt of the electronic communication “within a second”
63
United States v. Steiger, 318 F.3d 1039, 1047 (11th Cir. 2003).
64
Id. at 1049-50.
65
Def.’s Mot. to Exclude Sherr, at 6-7.
66
Pls.’ Resp. to Def.’s Mot. to Exclude Sherr, at 3.
67
Id. at 2-3.
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is contemporaneous.68 But what qualifies as contemporaneous with transmission is
“not so well-defined or beyond reasonable argument that th[e] issue[] should be
effectively decided by a Daubert order.”69 Sherr opined that Detective Mode’s
keystroke feature is capable of intercepting communication “nearly at the instant the
communication is transmitted over the network.”70 He further noted that “[s]ince
PCRA with Detective Mode continuously captures keystrokes as they occur, any and
all typed communication will be intercepted at the time in which the user inputs the
communication.”71 Sherr’s opinions and testimony do not strike the Court as
unreliable. They provide at least a reasonable argument as to what qualifies as
contemporaneous in the context of Detective Mode. The Court therefore declines to
exclude Sherr’s opinions and testimony regarding the contemporaneous interception
of electronic communications. The issue of what constitutes a contemporaneous
interception will be addressed in the context of the Defendant’s Motion for Summary
Judgment.
68
United States v. Szymuszkiewicz, 622 F.3d 701, 706 (7th Cir. 2010).
69
In re Southeastern Milk Litig., No. 2:08-MD-1000, 2010 WL 5102974,
at *2 (E.D. Tenn. Dec. 8, 2010).
70
Def.’s Mot. for Summ. J., Ex. M, Sherr Oct. 5, 2016 Expert Report ¶¶ 8-
71
Id. ¶ 6.
9.
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Next, the Defendant seeks to exclude Sherr’s opinions related to the Plaintiffs’
computer trespass claims. The Plaintiffs allege that the Defendant committed
computer trespass under O.C.G.A. § 16-9-93(b). To commit a computer trespass under
O.C.G.A. §16-9-93(b), a person must use a computer with the knowledge that he or
she is without authority to use it and with the intention of “[o]bstructing, interrupting,
or in any way interfering with the use of a computer program or data.”72 In addition,
the plaintiff’s person or property must be damaged via the computer trespass.73 The
Plaintiffs here allege that the installation of PCRA constitutes a computer trespass
because PCRA made the leased computers sluggish. In support of their allegations,
the Plaintiffs rely on Sherr’s opinions regarding PCRA’s purported flaws. In his
expert report, Sherr identified three alleged flaws – weakened security, memory leak,
and data loss – which the Plaintiffs contend caused the alleged sluggishness.74 The
Defendant argues that Sherr’s opinions regarding the purported flaws are speculative,
because they are based on a limited review of the PCRA source code, not on an actual
computer with PCRA installed. The Defendant also notes that Sherr’s testimony fails
to account for obvious alternative causes for the alleged damage.
72
O.C.G.A. § 16-9-93(b)(2).
73
Id. § 16-9-93(g).
74
Def.’s Mot. for Summ. J., Ex. L, Sherr July 15, 2016 Expert Report ¶¶
14, 24, 26.
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The Court agrees with the Defendant. Sherr’s opinions with regard to the speed
of the computers are unsupported speculations that do not assist the trier of fact. In his
report, Sherr opines that by removing various security features on the computer
operating system, PCRA increased the likelihood of a malware infection.75 And
because malware may cause a computer to run slow, PCRA may be to blame for the
alleged sluggishness.76 For memory leak and data loss, Sherr opined that “[b]oth
memory leaks and memory corruption can contribute to (1) the ‘sluggishness’ of a
computer and (2) the stability of the software running on that computer,” and that he
“found numerous instances in which PCRA can cause loss of user data.”77 “For
example, PCRA could cause the contents of an email that is being composed in an
Internet browser to be permanently lost. Additionally, PCRA may cause additional
data loss by preventing access to critical components of the operating system that are
intended to help the user recover lost data.”78 These equivocal statements with regard
to the cause of the alleged computer damage do not assist the trier of fact to determine
75
Id. ¶¶ 14-23.
76
Sherr Dep., at 25-28.
77
Def.’s Mot. for Summ. J., Ex. L, Sherr July 15, 2016 Expert Report ¶¶
25-26.
78
Id.
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causation.79 To assist the trier of fact, the evidence presented must be relevant. Federal
Rule of Evidence 401 defines relevant evidence as having “any tendency to make a
fact more or less probable than it would be without the evidence.”80 Sherr’s consistent
use of “may,” “can,” and “could” makes Sherr’s statements merely possible, not more
probable.81 A statement that something is merely possible “does not ‘logically advance
a material aspect of [the Plaintiffs’] case.’”82 Thus, the Court grants the Defendant’s
Motion to Exclude Sherr’s opinions regarding computer performance.
2. Michael Maschke
The Defendant seeks to exclude the opinions of the Plaintiffs’ expert, Michael
Maschke. The Defendant asserts that Maschke’s opinions are unreliable, because they
are based on cursory and unscientific examinations of computers with PCRA.
However, the Court finds the Defendant’s Motion to be premature. The Plaintiffs do
not rely on Maschke’s opinions in their response to the Defendant’s Motion for
Summary Judgment. Moreover, the Plaintiffs state that they have not decided whether
79
Bowers v. Norfolk Southern Corp., 537 F. Supp. 2d 1343, 1368 (M.D.
Ga. 2007).
80
FED. R. EVID. 401.
81
Bowers, 537 F. Supp. 2d at 1368.
82
Id. (quoting Allison v. McGhan Med. Corp., 184 F.3d 1300, 1312 (11th
Cir. 1999)).
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they will use the Maschke’s testimony at trial.83 The Court therefore denies without
prejudice the Defendant’s Motion to Exclude the Testimony of Michael Maschke.84
B. Robertsons’ Claims
1. Standing
The Defendant asserts that the Plaintiffs Chauncey Robertson, Sr. and Jamie
Robertson do not have standing to allege any claims based on the Defendant’s use of
Detective Mode. The Robertsons were not originally part of the instant lawsuit. They
were added as a party on June 18, 2014, when the Plaintiffs filed a First Amended
Complaint.85 In the original Complaint, none of the named Plaintiffs alleged that
Detective Mode was installed on their computers. As a result, the Defendant contends
that because “at least one named class representative must have Article III standing
to raise each subclaim” in a Complaint, the Plaintiffs cannot amend their Complaint
to add the Robertsons’ claims based on Detective Mode.86
83
Pls.’ Resp. to Def.’s Mot. to Exclude Maschke, at 2-3.
84
See, e.g., Johnson v. Allstate Ins. Co., No. 1:06-cv-14(WLS), 2006 WL
2617127, at *1 (M.D. Ga. Sept. 12, 2006) (denying without prejudice a motion to
exclude expert testimony because the expert testimony was not germane to the
pending motion for summary judgment).
85
[Doc. 31].
86
Def.’s Mot. for Summ. J., at 7 (quoting Prado-Steiman v. Bush, 221 F.3d
1266, 1279-80 (11th Cir. 2000)).
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The Court disagrees. The case the Defendant cites in support of its argument is
distinguishable. In Wright v. Dougherty County, Georgia, the Eleventh Circuit held
that because a plaintiff lacked standing to bring any claim against the defendant, the
plaintiff “also lack[ed] standing to amend the complaint to consolidate with a party
who may have standing.”87 Here, the Defendant does not challenge the original
Plaintiffs’ standing to assert claims based on the Defendant’s use of PCRA. And
because the original Plaintiffs have standing to assert their original claims, the original
Plaintiffs also have the right to seek leave to amend their Complaint to add additional
plaintiffs. Indeed, the Plaintiffs sought leave, and the Court granted it.88 The Court
therefore concludes that the Robertsons have standing to assert all of their claims.
87
Wright v. Dougherty Cnty., Ga., 358 F.3d 1352, 1356 (11th Cir. 2004).
88
See FED. R. CIV. P. 15(a)(2) (“[A] party may amend its pleading only
with the opposing party’s written consent or the court’s leave,” and “[t]he court should
freely give leave when justice so requires.”).
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2. Invasion of Privacy - Detective Mode
In Count I of their Second Amended Complaint, the Plaintiffs assert an invasion
of privacy/intrusion on seclusion claim. The Plaintiffs allege that the Defendant’s
activation of Detective Mode on the Robertsons’ computer invaded the Robertsons’
privacy. The Defendant contends that the Robertsons’ invasion of privacy claim based
on the Detective Mode activation is barred by the applicable statute of limitations.89
For privacy torts, Georgia applies a two-year statute of limitations, and “the statute of
limitation generally begins to run at the time damage caused by a tortious act
occurs.”90 As noted above, Detective Mode was activated on the Robertsons’
computer on November 9-10, 2010. Thus, the Robertsons’ statute of limitations
expired on November 10, 2012, which is, of course, well before the filing of the
instant class action on April 23, 2014. Moreover, because no class actions were filed
prior to November 10, 2012, no class action tolled the Robertsons’ claim. As a result,
89
Under Georgia choice of law, foreign statutes of limitations are
procedural in nature. Thus, a federal court sitting in diversity applies the applicable
Georgia statute of limitations and tolling provision. See Branch v. Sickert, No. 2:10cv-128-RWS, 2011 WL 796783, at *2 (N.D. Ga. Feb. 28, 2011) (“Georgia law
generally regards foreign statutes of limitations as procedural and will apply its own
statute of limitations.” (citing Hudnall v. Kelly, 388 F. Supp. 1352, 1354 (N.D. Ga.
1975))).
90
O.C.G.A. § 9-3-33; Rivell v. Private Health Care Sys., Inc., 887 F. Supp.
2d 1277, 1284-85 (S.D. Ga. 2012) (quoting Everhart v. Rich’s, Inc., 229 Ga. 798, 801
(1972)).
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the Robertsons’ invasion of privacy of claim, insofar as it is based on the Defendant’s
activation of Detective Mode, is time barred.
3. Invasion of Privacy - PCRA
The Plaintiffs also allege that the Defendant’s installation of PCRA on the
Robertsons’ computer invaded the Robertsons’ privacy. The Defendant, once again,
asserts that the Robertsons’ claim is time barred. The Robertsons returned their
computer to SEI on June 27, 2011. As a result, any invasion of privacy claim had to
be filed by June 27, 2013. However, the Plaintiffs contend that, pursuant to the rule
of American Pipe & Construction Co. v. Utah,91 the Robertsons’ claim was tolled by
a prior class action. On March 5, 2013, Gwendolyn Sneed filed a putative class action
against SEI, alleging claims for invasion of privacy based on SEI’s activation of
Detective Mode and installation of PCRA.92 Then, on May 20, 2014, Sneed
voluntarily dismissed her case prior to the district court’s ruling on class
certification.93 According to the Plaintiffs, the Sneed action tolled the Robertsons’
invasion of privacy claim.
91
414 U.S. 538 (1974).
92
Sneed v. SEI/Aaron’s, Inc., No. 1:13-cv-00982-TWT (N.D. Ga.), [Doc.
93
Id. at [Doc. 44].
1].
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In American Pipe, the Supreme Court held that “the commencement of a class
action suspends the applicable statute of limitations as to all asserted members of the
class who would have been parties had the suit been permitted to continue as a class
action.”94 If and when class certification is denied, the limitations period begins to
run.95 The Defendant counters that the Robertsons’ claim cannot be tolled because the
Sneed action was voluntarily dismissed. It is generally accepted that a voluntarily
dismissed complaint does not toll the statute of limitations.96 “This is because the law
treats a voluntarily dismissed complaint as if it never had been filed.”97 The question
therefore becomes how the general rule regarding voluntarily dismissed complaints
affects a subsequent class action based on the same conduct.
In arguing that the general rule is inapplicable, the Plaintiffs rely on Sawyer v.
Atlas Heating and Sheet Metal Works, Inc.98 There, the Seventh Circuit held that
94
American Pipe, 414 U.S. at 554.
95
Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345, 353-54 (1983).
96
See Weldon v. Electronic Data Sys., 138 F. App’x 136, 138 (11th Cir.
2005) (finding that a voluntarily dismissed complaint did not toll the statute of
limitations); CHARLES ALAN WRIGHT & ARTHUR R. MILLER, 9 FED. PRAC. & PROC.
CIV. § 2367 (3d ed.).
97
In re IndyMac Mortgage-Backed Securities Litig., 718 F. Supp. 2d 495,
504 (S.D.N.Y. 2010).
98
642 F.3d 560 (7th Cir. 2011).
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“[t]olling lasts from the day a class claim is asserted until the day the suit is
conclusively not a class action – which may be because the judge rules adversely to
the plaintiff, or because the plaintiff reads the handwriting on the wall and decides not
to throw good money after bad.”99 Thus, the Seventh Circuit held that a voluntarily
dismissed class action does toll the putative class members’ individual claims. The
Seventh Circuit then answered an additional, more contested question: whether a
successive class action that relies on American Pipe’s tolling principle may proceed
as a class action when the prior class action complaint was voluntarily dismissed. In
answering this question in the affirmative, the Seventh Circuit held that a successive
class action is precluded by a prior class action only when a “court denies certification
for a reason that would be equally applicable to any later suit – for example, that the
supposed victims are too few to justify class litigation . . . then members of the
asserted class are bound by that decision.”100 But if the court denied certification in the
first class action because the class representative was inappropriate, “then there is no
basis for binding other members of the putative class, who have yet to receive a
judicial decision on the question whether a class is certifiable under Rule 23.”101
99
Id. at 563.
100
Id. at 564.
101
Id.
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The Eleventh Circuit disagrees with the Seventh Circuit’s approach regarding
prior class actions. In Ewing Industries Corp. v. Bob Wines Nursery, Inc., the
Eleventh Circuit, citing Griffin v. Singletary, held that a prior class action that was
dismissed because of an inadequate class representative – and not because of a defect
in the class itself – did not toll the statute of limitations for a subsequent class
action.102 Thus, unlike the Seventh Circuit in Sawyer, the Eleventh Circuit found that
every proposed class is not entitled to at least one attempt at class certification.103 The
court noted that its holding prevented “the potential for multiple rounds of litigation
as the class seeks an adequate class representative.”104 In accordance with the principle
laid out in Ewing Industries, the Court finds that the Sneed action did not toll the
Robertsons’ class claim for invasion of privacy. If a named plaintiff’s voluntarily
dismissal of a class action tolled all future class action claims, the potential for
“piggybacked” class actions arises. The initial class counsel could determine a class
representative is inadequate and preemptively seek a voluntarily dismissal. Then, the
class action could be filed again and again, with the hopes of finding an adequate
representative. The Eleventh Circuit warned against “adopt[ing] any rule that has the
102
795 F.3d 1324, 1328 (11th Cir. 2015).
103
Id. at 1326.
104
Id. at 1328.
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potential for prolonging litigation about class representation even further.”105 The
Court will follow the Eleventh Circuit’s warning: the Robertsons may not pursue their
invasion of privacy claim as a class claim.
Nevertheless, the Court finds that the Robertsons may pursue their invasion of
privacy claim as an individual claim. Relying on In re IndyMac Mortgage-Backed
Securities Litigation, the Defendant argues that the Robertsons’ individual invasion
of privacy claim should be dismissed. In that case, the plaintiffs argued that their
claims were tolled by a prior class action complaint.106 But the Southern District of
New York held that the American Pipe rule does not apply where the initial complaint
was dismissed voluntarily.107 The court stated that because a voluntarily dismissed
complaint is treated as if it was never filed, the initial complaint cannot toll the
plaintiffs’ claims.108 It is unclear to the Court, however, whether the In re IndyMac
court was referring to the plaintiffs’ class claims or individual claims. The court’s
opinion does not clearly delineate between the two. Even so, it seems rather harsh to
find a putative class member’s individual claims are not tolled based on the whims of
105
Id. (quoting Griffin v. Singletary, 17 F.3d 356, 359 (11th Cir. 1994)).
106
In re IndyMac Mortgage-Backed Secs. Litig., 718 F. Supp. 2d 495, 504
(S.D.N.Y. 2010).
107
Id. at 505.
108
Id. at 504-05.
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the class representative. As a result, the Court finds that the American Pipe rule is
applicable to the Robertsons’ individual invasion of privacy claim based on the
Defendant’s use of PCRA.
Next, the Defendant argues that the Robertsons’ PCRA invasion of privacy
claim fails because no private data was captured. Before the Court can address this
issue, however, it must determine whether Georgia law is applicable to the
Robertsons’ invasion of privacy claim. The Defendant contends that Connecticut law
should apply to the Plaintiffs’ claim. Though not completely clear to the Court, the
Plaintiffs appear to assert that Georgia law should apply.109 A federal court sitting in
diversity applies the choice of law rules of the forum state to determine which law
applies.110 Therefore, the Georgia choice of law rules apply here. Georgia follows the
doctrine of lex loci delicti:111
The general rule is that the place of the wrong, the locus delecti, is the
place where the injury was suffered rather than the place where the act
was committed, or, as it is sometimes more generally put, it is the place
109
The Plaintiffs specifically concede that New York law applies to the
Plaintiffs Cason’s and Krise’s invasion of privacy claims. The Plaintiffs fail to note
whether they agree with the Defendant’s choice of law analysis with regard to the
Robertsons’ claim. See Pls.’ Resp. Br., at 34 n.8.
110
Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941).
111
Brenner v. Future Graphics, LLC, 258 F.R.D. 561, 571 (N.D. Ga. 2007).
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where the last event necessary to make an actor liable for the alleged tort
takes place.112
Thus, the substantive law of the jurisdiction where each Plaintiff suffered harm would
apply to their claims. However, Georgia choice of law doctrine applies a unique
exception to the lex loci delicti doctrine. When a harm is suffered out of state, the
application of that state’s laws “is limited to statutes and decisions construing those
statutes.”113 If no statute is relevant, Georgia common law applies to the parties’
claims.114
Nevertheless, Georgia common law will not apply if its application is
inconsistent with due process. To determine whether the application of Georgia law
to the Plaintiffs’ claim is consistent with due process, “the court must analyze whether
the State of Georgia has ‘significant contact or significant aggregation of contacts to
the claims asserted by each . . . [Plaintiff], contacts creating state interests, in order to
ensure that the choice of Georgia law is not arbitrary or unfair.’”115 Here, the
112
Id. (quoting Risdon Enters., Inc. v. Colemill Enters., Inc., 172 Ga. App.
902, 903 (1984)).
113
In re Tri-State Crematory Litig., 215 F.R.D. 660, 667 (N.D. Ga. 2003)
(quoting Frank Briscoe Co., Inc. v. Georgia Sprinkler Co. Inc., 713 F.2d 1500, 1503
(11th Cir. 1983)).
114
Brenner, 258 F.R.D. at 571.
115
Id. (quoting Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 821-22
(1985)).
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Defendant SEI is a Georgia corporation with its principal place of business in Atlanta,
Georgia. SEI purchased PCRA from its Atlanta office and made payments for the
spyware from its Atlanta office.116 But these are the only contacts to the state of
Georgia. The Robertsons, who live in Connecticut, leased their computer from an SEI
store in Connecticut. PCRA was installed on their leased computer at the Connecticut
store, and any information gathered through PCRA would have been sent to an SEI
employee at the Connecticut store. Finally, the Robertsons do not allege that they used
their computer outside of the state of Connecticut.117 As a result, the Court finds that
Connecticut law should apply to the Robertsons’ invasion of privacy claim.
Connecticut follows the Restatement (Second) of Torts’ definition of intrusion
upon seclusion: “intentionally intrud[ing], physically or otherwise, upon the solitude
or seclusion of another or his private affairs or concerns . . . if the intrusion would be
highly offensive to a reasonable person.”118 The Defendant contends that the
Robertsons’ claim fails because PCRA – without Detective Mode installed and
116
Pls.’ Resp. Br., Ex. D.
117
Def.’s Statement of Facts ¶ 83.
118
Tedeschi v. Kason Credit Corp., No. 3:10cv00612 DJS, 2014 WL
1491173, at *6 (D. Conn. April 15, 2014) (quoting RESTATEMENT (SECOND) OF TORTS
§ 652B (1977)); see also Goodrich v. Waterbury Republican-Am., Inc., 188 Conn.
107, 128 (1982).
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activated – was incapable of collecting private information.119 Rather, PCRA was only
capable of capturing the IP address of the computer, which, according to the
Defendant, is not highly offensive to a reasonable person. In response, the Plaintiffs
argue that mere installation of PCRA is offensive to a reasonable person, because the
Defendant was capable of installing Detective Mode through PCRA. They cite
Koeppel v. Spiers in support of their argument.
In Koeppel, the Iowa Supreme Court addressed the question of “whether the
harm sought to be remedied by the [intrusion upon seclusion] tort is caused by
accessing information from the plaintiff in a private place or by placing mechanisms
in a private place that are capable of doing so at the hand of the defendant.”120 After
a review of the relevant case law, the Koeppel court held that placing a device into
private place that is capable of capturing private information is sufficient to state an
intrusion upon seclusion claim.121
Based on a review of Connecticut case law, it does not appear that the
Connecticut courts have weighed in on the issue. Nevertheless, the Court finds that
the instant case is distinguishable from the circumstances in Koeppel. In Koeppel, the
119
Def.’s Statement of Facts ¶ 14; Kelly Dep., at 40-46, 53, 65.
120
Koeppel v. Speirs, 808 N.W. 2d 177, 184 (Iowa 2011).
121
Id. at 185-86.
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plaintiff brought suit against her employer after it was discovered that the employer
installed a hidden camera in a workplace bathroom.122 The employer contended that
the plaintiff could not assert an invasion of privacy claim, because the camera never
actually worked.123 But the plaintiff submitted evidence that the camera was
potentially capable of working when a fresh battery was in place.124 The court held
that because there was evidence that the camera was potentially capable of working,
the plaintiff’s claim could survive summary judgment.125
Here, the parties do not dispute that PCRA was incapable of capturing any
private information. The Defendant needed to separately install and activate Detective
Mode in order to potentially capture private information. The Court finds that this fact
differentiates the instant case from the cases cited by the Plaintiffs. Those cases all
involve circumstances where a person was subjected to a functioning recording
device.126 Outside of the two days Detective Mode was installed on the Robertsons’
122
Id. at 178-79.
123
Id. at 185.
124
Id.
125
Id.
126
See, e.g., Amati v. City of Woodstock, Ill., 829 F. Supp. 998, 1010 (N.D.
Ill. 1993) (finding that the placing of a recording device to capture private
conversations is sufficient to assert an intrusion upon seclusion claim, even if the
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computer, the Robertsons’ computer was only installed with PCRA. Because PCRA
was incapable of capturing private information, the Robertsons’ intrusion upon
seclusion claim cannot survive. The Court therefore grants the Defendant’s Motion
for Summary Judgment with regard to the Robertsons’ invasion of privacy claim.
4. Georgia Computer Systems Protection Act
The Georgia Computer Systems Protection Act (“GCSPA”) prohibits, inter
alia, “computer trespass” and “computer invasion of privacy.”127 “Any person whose
property or person is injured by reason of a violation” of the GCSPA may bring an
action for damages.128 The Robertsons allege that the installation of PCRA constitutes
both a computer trespass and a computer invasion of privacy. The GCSPA does not
apply extraterritorially.129 Thus, in order to assert a claim under the GCSPA, a
plaintiff’s claim must have a sufficient connection to Georgia. The Defendant argues
that none of the alleged injuries or unlawful acts took place in Georgia. It points to the
following facts. The Robertsons, who are residents of Connecticut, leased their
defendant failed to listen to the private conversations).
127
O.C.G.A. § 16-9-93.
128
Id. § 16-9-93(g)(1).
129
Peterson v. Aaron’s, Inc., 108 F. Supp. 3d 1352, 1354 (N.D. Ga. 2015)
(noting that “no part of the GCSPA indicates that it applies extra-territorially”).
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computer from an SEI store in Meriden, Connecticut.130 PCRA was installed on the
Robertsons’ computer by an SEI employee at the Meriden store.131 The Robertsons
never used their computer outside of the state of Connecticut.132 Any data received
through PCRA was routed through a DesignerWare server in Pennsylvania and was
emailed to SEI employees in Connecticut.133 The employee who activated Detective
Mode on the Robertsons’ computer was located in Connecticut.134
According to the Defendant, this case is very similar to Peterson v. Aaron’s,
Inc.135 In Peterson, this Court held that the plaintiffs could not assert a claim under the
GCSPA because none of the alleged injuries or illegal conduct occurred in Georgia.136
There, the plaintiffs, who were residents of Colorado and Oklahoma, leased a
computer from a Montana-based franchisee store located in Colorado.137 In response,
130
Def.’s Statement of Facts ¶ 49.
131
Id.
132
Jamie Robertson Dep., at 71; Pls.’ Resp. to Def.’s Statement of Facts ¶
133
Kelly Dep., at 8, 82-84.
134
Debroisse Aff. ¶ 16.
135
108 F. Supp. 3d 1352 (N.D. Ga. 2015).
136
Id. at 1354-55.
137
Id.
83.
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the Plaintiffs point out a few differences between Peterson and the instant action. First,
SEI is a Georgia-based franchisee. Second, SEI purchased PCRA from its Atlanta
office and made payments for the spyware from the Atlanta office. Third, the
Plaintiffs allege that SEI’s employees used “Aarons.com” email addresses for the
installation and operation of PCRA, and they point out that the Aaron’s email server
is located in Atlanta.138
Despite SEI’s connections to Georgia, the Court finds that the Plaintiffs cannot
bring a claim under the GCSPA. To be sure, the instant case is a closer call than the
Peterson case. Nevertheless, all of the alleged injuries and illegal conduct occurred
outside the state of Georgia. The only allegation of illegal conduct that touches
Georgia is contradicted by the evidence. The Plaintiffs allege that the Defendant
installed PCRA through its employees’ Aarons.com email addresses. But, according
to the DesignerWare instruction manual, the computer does not connect to the internet
until the installation process is complete.139 Moreover, an SEI employee testified that
PCRA was installed using a disk or thumb drive, not over the internet.140 It was only
138
Pls.’ Resp. Br., at 20.
139
Kelly Dep., Ex. 5, at 184.
140
Cox Dep., at 51-53.
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after PCRA was successfully installed and connected to the internet that an email
would be sent to an SEI employee confirming the installation of PCRA.141
The Plaintiffs also argue that SEI’s payments to DesignerWare from its Georgia
office are sufficient contacts to Georgia. They cite the venue provision of the GCSPA
in support of their contention. The venue provision states: “any violation of this article
shall be considered to have been committed . . . (3) in any county in which any act was
performed in furtherance of any transaction which violated this article[.]”142 But, as
the Defendant points out, this venue provision is only for the purpose of determining
venue. Where, as here, all of the allegedly unlawful acts and injuries occurred outside
the state of Georgia, the Court is unconvinced a plaintiff should be able to bring a
claim under the GCSPA. Accordingly, the Defendant’s Motion for Summary
Judgment with regard to the Robertsons’ GCSPA claim should be granted.
5. Violation of the Electronic Communications Privacy Act
The Robertsons assert claims under 18 U.S.C. § 2511(1)(a)(c) and (d) of the
Electronic Communications Protection Act (“ECPA”). As previously discussed, the
ECPA imposes criminal and civil liability on any person who “intentionally intercepts
141
Cason Dep., Ex. 1, at 1.
142
O.C.G.A. § 16-9-94(3).
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. . . any wire, oral or electronic communication.”143 The ECPA also imposes liability
on any person who “intentionally discloses” or “intentionally uses” the contents of an
electronic communication if that person knows, or has reason to know, that the
communication was intercepted in violation of the Act.144 Therefore, in order to assert
a claim under the ECPA, a plaintiff must prove that his or her communication was
“intercepted.” The Eleventh Circuit has adopted a narrow reading of the term intercept
in the context of electronic communications. Specifically, to prove an interception
occurred,
the
electronic
communications
must
have
been
acquired
“contemporaneously with their transmission.”145 Electronic communications are not
intercepted under the ECPA if they are retrieved from storage.146 In United States v.
Steiger, for example, the Eleventh Circuit held that a computer hacker had not
“obtained [information] through contemporaneous acquisition of electronic
communications while in flight. Rather, the evidence show[ed] that the source used
143
18 U.S.C. § 2511(1)(a).
144
Id. § 2511(1)(c), (d).
145
United States v. Steiger, 318 F.3d 1039, 1049 (11th Cir. 2003).
146
Id.
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a Trojan Horse virus that enabled him to access and download information on . . . [the]
personal computer.”147
What qualifies as a contemporaneous interception is hotly disputed in most
ECPA cases. This case is no different. Detective Mode is capable of capturing four
different kinds of data from a computer: screen shots, clipboard content, key strokes,
and web camera images and/or videos.148 But both parties specifically focus on
screenshots and keystrokes in their briefs and expert reports. The Defendant contends
that the Plaintiffs cannot prove a contemporaneous interception occurred, because
Detective Mode cannot capture communications while they are “in flight.” The
Defendant’s expert, Professor Patrick McDaniel, concluded that Detective Mode
“collects data from memory where it is stored locally on the machine.”149 For example,
“any data collected from the keyboard would not be captured simultaneous with
transmission because it would be collected before it was sent.”150 Professor McDaniel
also noted that common tools for capturing data in flight – wire tapping, network data
147
Id. at 1050.
148
Def.’s Mot. for Summ. J., Ex. J(1), McDaniel May 11, 2016 Expert
Report, at 13.
149
Id.
150
Id. at 15.
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packeting sniffing, and packet capture – were not contained within the PCRA
software.151
In response, the Plaintiffs cite their expert, Micah Sherr, who opined that PCRA
is capable of capturing information simultaneously with its transmission. Sherr
asserted that “screenshot interceptions capture the contents of the user’s display the
instant the screenshot was taken.”152 Moreover, Sherr noted that PCRA captures
keystrokes “as they occur, and hence any typed form of communication will be
intercepted at the time at which the user inputs the communication.”153 In a deposition,
however, Sherr testified that PCRA captures information “[i]n close proximity” or
“near in time” to its transmission.154 This “near in time” capture happens at the
“endpoints,” meaning at the local machine, not over the network.155 For example,
when PCRA takes a screenshot, PCRA can capture an image of a communication from
151
Id.
152
Def.’s Mot. for Summ. J., Ex. K, Sherr Expert Report, at 12.
153
Id.
154
Sherr Dep., at 80.
155
Id. at 82.
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one computer to another very soon after the communication has arrived at the
recipient’s computer.156
The issue, therefore, is whether PCRA’s “near in time” capabilities constitute
an interception under the PCRA. For its keystroke function, the Court finds PCRA
does not “intercept” within the meaning of the ECPA. Based on the evidence put
forth, it is clear that the keystroke function records typed-letters before they are
transmitted, and thus it is only capturing the transmissions between the keyboard and
the computer. Several courts have found that such keystroke functions are not
capturing “electronic communications” that affect commerce.157
Detective Mode’s screenshot function presents a more difficult question. Few
courts have examined screenshot technology under the ECPA. Nevertheless, the
Plaintiffs contend that Shefts v. Petrakis supports their argument that a screenshot that
captures an image of a communication on a computer is contemporaneously copying
156
Id. at 15.
157
See United States v. Barrington, 648 F.3d 1178, 1202 (11th Cir. 2011)
(“[U]se of a keylogger will not violate the Wiretap Act if the signal or information
captured from the keystrokes is not at that time being transmitted beyond the computer
on which the keylogger is installed (or being otherwise transmitted by a system that
affects interstate commerce).”); Rene v. G.F. Fishers, Inc., 817 F. Supp. 2d 1090, 1094
(S.D. Ind. 2011) (agreeing with Barrington and holding that a keylogger intercepted
keystrokes that were not electronic communications that affect interstate commerce).
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the communication as it is transmitted. In Shefts, the plaintiff alleged that the
defendants intercepted messages from his web-based email account by using a
software called SpectorPro.158 Similar to Detective Mode, SpectorPro operated by
taking images of the user’s activities on the computer.159 The Shefts court held that the
screen-captures constituted an interception under the ECPA.160 It found that “any
emails sent by Plaintiff on his Yahoo! account via his desktop computer would have
been captured by SpectorPro as they were transmitted to Yahoo! via the internet.”161
The Court, however, finds that SpectorPro is distinguishable from PCRA’s
Detective Mode. According to the Shefts court, SpectorPro was “always on,” meaning
it was constantly capturing screenshots.162 Therefore – by default – it “capture[d] all
communications simultaneously with their transmission.”163 But Detective Mode’s
screen-capture function was not always running. Instead, according to the Plaintiffs’
158
Shefts v. Petrakis, No. 10-cv-1104, 2012 WL 4049484, at *8 (C.D. Ill.
Sept. 13, 2012).
159
Id.
160
Id. at *9.
161
Id. (emphasis in original).
162
Id. at *11 n.25.
163
Id.
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expert, it took screenshots every two minutes.164 This means that Detective Mode did
not automatically capture all communications simultaneously with their transmission.
In fact, Detective Mode’s screen-capture function is more akin to a different
intercepting device discussed in Shefts. Specifically, the Shefts court found that
“where the allegedly intercepting device operates only intermittently (rather than
continuously, as in the SpectorPro instance), the amount of time between the
transmission and interception by the spy is not the primary determining factor, but
rather the fact that interception was automatically triggered by transmission or
reception.”165 The court went on to find that because the intercepting device at issue
“did not acquire the text messages as they were transmitted to or from Plaintiff, but
acquired them from the Blackberry at predetermined intervals,” it could not find that
the device intercepted the messages under the ECPA.166 Here, Detective Mode’s
screen-capture function is not triggered by the transmission or reception of electronic
communications. Instead, it took a screenshot at predetermined intervals. Even if the
Plaintiffs can show that a screenshot or two occurred in close proximity to an
electronic communication, that does not mean the screenshot captured the
164
Def.’s Mot. for Summ. J., Ex. K, Sherr Expert Report, at 12.
165
Shefts, 2012 WL 4049484, at *11.
166
Id.
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communication simultaneously with its transmission. Indeed, there is no evidence to
demonstrate that a screenshot was ever triggered by a communication. As a result, the
Court finds that Detective Mode’s screenshot function did not intercept the
Robertsons’ electronic communications under the ECPA. The Defendant’s Motion for
Summary Judgment with regard to the Plaintiffs’ ECPA claim is granted.
C. Cason’s and Krise’s Claims
The Plaintiffs Corie Cason and Karen Krise allege both invasion of privacy and
violation of the GCSPA. In their Response Brief, the Plaintiffs agreed with the
Defendant’s choice of law analysis and stated that Cason’s and Krise’s common law
invasion of privacy claims should be dismissed.167 Accordingly, the Defendant’s
Motion for Summary Judgment regarding the Plaintiffs Cason’s and Krise’s common
law invasion of privacy claims is granted. As for Cason’s and Krise’s GCPSA claims,
the Court reaches the same conclusion as it did with regard to the Robertsons’ GCPSA
claim. The Plaintiff Cason leased her computer from an SEI store in Buffalo, New
York and never took the computer to Georgia.168 PCRA was installed on her computer
at the Buffalo store.169 Detective Mode was never installed on Cason’s computer and
167
Pls.’ Resp. Br., at 34 n.8.
168
Def.’s Statement of Facts ¶ 85; Cason Dep., at 111-12.
169
Def.’s Statement of Facts ¶ 85.
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any information gathered from PCRA would have been emailed to a Buffalo store
employee.170 Similarly, the Plaintiff Krise leased her computer from a store in
Massena, New York.171 PCRA was installed on her computer at the time of the
lease.172 Krise does not allege that she ever took the computer to Georgia.173 It is
undisputed that Detective Mode was never installed on Krise’s computer, and any
information gathered through PCRA would have been sent to an employee at the
Massena store.174 Moreover, both lockdowns of the Plaintiff Krise’s computer were
executed by employees at the Massena store.175 As the Court explained above, it is
unwilling to allow the Plaintiffs’ GCSPA claims to move forward when none of the
alleged illegal conduct and injuries occurred in Georgia. The Defendant’s Motion for
Summary Judgment is granted as to the Plaintiffs Cason’s and Krise’s GCSPA
claims.176
170
Id. ¶ 104.
171
Id. ¶ 106.
172
Id.
173
Krise Dep., at 138.
174
Def.’s Statement of Facts ¶¶ 142-43.
175
Cox Dep., at 51-53; Hunt Aff. ¶¶ 14-15.
176
The Defendant also raises the issue of spoliation, asserting that the
Plaintiffs Cason’s and Krise’s claims should be dismissed under Federal Rule of Civil
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IV. Conclusion
For these reasons, the Defendant’s Motion to Exclude the Testimony of Micah
Sherr [Doc. 104] is GRANTED in part and DENIED in part; the Defendant’s Motion
to Exclude the Testimony of Michael Maschke [Doc. 111] is DENIED; and the
Defendant’s Motion for Summary Judgment [Doc. 97] is GRANTED.
Procedure 37. See Def.’s Mot. for Summ. J., at 48-50, 56-57. Because the Court is
granting the Defendant’s Motion for Summary Judgment as to all of Cason’s and
Krise’s claims, it will not address the Defendant’s spoliation allegations. The
Defendant may bring a motion for sanctions based on the alleged spoliation if it
wishes.
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SO ORDERED, this 18 day of August, 2017.
/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge
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