Hovanec v. Miller et al

Filing 89

ORDER DENYING 75 Motion for Summary Judgment. The Court sets a hearing on August 14, 2019 at 10:30 a.m., the time currently scheduled for the pretrial conference, to consider (1) whether Hovanecs damages evidence (or any otherevidence) must be excluded from consideration pursuant to Rule 37(c)23 and (2) whether Hovanec is entitled to a spoliation remedy. No later than July 31, Signed by Judge Xavier Rodriguez. (mgr)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
ALISON HOVANEC,
Plaintiff,
v.
TRACI MILLER,
Defendant.

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Civil Action No. SA-17-CV-766-XR

ORDER
On this date, the Court considered the Motion for Summary Judgment filed by Defendant
Traci Miller (docket no. 75), and the responses and replies thereto. Plaintiff Alison Hovanec
sues Traci Miller for violation of the Stored Communications Act (“SCA”), 18 U.S.C. § 2701
et seq., violation of the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030 et seq.,
intrusion on seclusion, and intentional infliction of emotional distress. Miller moves for
summary judgment on all claims. After careful consideration, the Court will deny the motion
for summary judgment. The Court will set for a hearing Miller’s request for exclusion of
evidence under Rule 37(c) and Hovanec’s motion for spoliation remedy.
Factual and Procedural Background
Plaintiff Alison Hovanec was friends with Defendant Traci Miller, and from May 2013
to May 2015, Miller worked under Hovanec as a wardrobe consultant/sales person for two
companies, Carlisle Etcetera LLC and W by Worth. From May 2015 to Spring 2016, the
relationship between Hovanec and Miller turned from friendly to somewhat antagonistic.

Hovanec alleges that in May 2015, Miller disparaged her to her father and also refused to sell
clothes and canceled her show, which reflected poorly on Hovanec. Hovanec alleges that Miller
would complain about Hovanec to other wardrobe sales consultants and upper management at
Carlisle Etcetera LLC and W by Worth, leading to Hovanec’s termination as the local Director
of Business Development for W by Worth in May 2015. Plaintiff alleges that Miller than gloated
about being offered the job. Hovanec states that she began distancing herself from Miller, and
most of their contact was through their daughters, who remained best friends.
The undisputed summary-judgment evidence indicates the following. On Friday May
13, 2016, Hovanec and Miller and their daughters attended a movie in the park event. During
the event, Hovanec and Miller had a confrontation over the fact that Miller’s daughter did not
want to spend the night with Hovanec’s daughter at Hovanec’s house. Hovanec and her daughter
left the park, and Hovanec told Miller she would be contacting the girls’ school about the
incident. Miller tried texting and calling Hovanec on Saturday, but Hovanec did not respond.
On May 16, 2016, Miller viewed Hovanec’s LinkedIn profile and “unfriended”
Hovanec. Miller depo. at 138. Miller testified that she “disabled [Hovanec’s] connection to me
on all social media.” Id. Also on May 16, Miller contacted Carlisle Etcetera about a blouse she
purchased through Hovanec in November 2015 and then returned because she had not received
a return credit. Miller depo. at 119. Miller testified that she contacted Carlisle Etcetera that day
“because it had become apparent to me that the relationship between us was dissolved” because
Hovanec would not return her calls on Saturday. Id. at 119-120. That same day, Hovanec
received an email from Carlisle Etcetera, regarding Miller’s message about the blouse refund.

2

On May 16, 2016 at 12:05 p.m., Hovanec received an email from “Alison Hovanec”
from the email address [e-mail] titled “Joel’s so Called Divorce” that referred
to her as “such as sucker.” Hovanec’s mother also received an email from that address entitled,
“Your Daughter is dating a married man!” and making disparaging remarks about her, including
that she was a loser who was in a “downward spiral” and was not competent or able “to keep a
job for more than a few months.” The Joel/”married man” referenced in the emails was Joel
Sauceda, Hovanec’s occasional boyfriend.
Hovanec contacted Sauceda and asked him if he knew what to do to identify the person
sending the emails and stop them. Sauceda owns an internet technology company and began
devising a plan to identify the person through capturing their IP address. 1 Because the sender’s
email address was a gmail account, Sauceda would not be able to obtain the sender’s IP address
from the email itself, so he wanted to bring the user outside of gmail. Sauceda created a gmail
account

[e-mail]

and

began

communicating

by

email

with

[e-mail]. Roslyn James was just a name he made up. Sauceda depo. at 120.
Pretending to be Roslynjames1954, Sauceda wrote “I need info. must talk on private
line. he will go down. working for the man.” The user at [e-mail] responded,
“Working for what man? He is the agent of record for about a dozen different business entities
all run out of a small crappy office in San Antonio. His house has been foreclosed on in
Summerglen and license revoked involuntarily for Ad Plotter due to unpaid taxes. He lives in
an apartment and drives a leased Mercedes. He is a total con artist. If you are a PI you can easily
1

An IP (Internet Protocol) address uniquely identifies a particular network-connected device like a wi-fi router.
United States v. Weast, 811 F.3d 743 (5th Cir. 2016).
3

find all this out yourself.” Sauceda was “pretty shocked” that he got a response and wanted to
get the person curious enough to click on a link to a webpage so he could capture their IP address.
Sauceda depo. at 120, 122.
Sauceda owned the domain greenpowur.com and created a webpage on that domain, on
which he installed code provided from a web analytics company called statcounter that he knew
would capture the IP address of a visitor to the page. Sauceda depo. at 49-51, 66.2 Sauceda sent
another email from [e-mail] to [e-mail] stating, “he is
up to some other crap now have you seen this green power thing he is doing? I do not see a corp
registration for this. look at this page he has up. another scam.” That email contained a link to
the webpage on greenpowur.com that included statcounter code to capture the IP addresses of
page visitors.
On the morning of May 17, Sauceda discovered from his statcounter report that the user
had clicked on the link, and the statcounter report provided the user’s IP address (108.65.34.232)
and identified the user as having an AT&T U-Verse account, using a mac operating system (OS
X) with a Safari browser, and being located in San Antonio, Texas. Sauceda’s expert report
states that the person clicked on the link, “where the static3 IP address of 108.65.34.232 was
captured along with identifying information to include a close proximity to Hovanec’s house at

Internet users “broadcast [their] IP address far and wide in the course of normal internet use.” United States v.
Weast, 811 F.3d 743, 747 & n.13 (5th Cir. 2016) (citing United States v. Christie, 624 F.3d 558, 563 (3d Cir. 2010)
(“IP addresses are also conveyed to websites that an internet user visits, and administrators of websites . . . can see
the IP addresses of visitors to their sites.”)).
2

3

Sauceda has admitted to being confused about the difference between a static and dynamic IP address at the time
he wrote his report, and to incorrectly using the term “static IP address” in his report. Sauceda depo. at 71-72.
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[address] San Antonio, TX 78216, a MAC operating system along with AT&T Uverse service.”
Sauceda report at ¶ 6.4
Sauceda asked Hovanec if she knew who it could be. Hovanec had been in Miller’s
house many times and knew that Miller had AT&T U-Verse and a Mac operating system, and
thus Hovanec suspected it was Miller behind the [e-mail] emails. Hovanec
knew that Miller used a gmail account, so Sauceda determined that he would not be able to
capture her IP address from an email. Hovanec and Sauceda devised a plan to email Miller and
get her to click on a link to a webpage with the statcounter code to compare Miller’s IP address
to the one used by [e-mail]. They decided to do so using an email about the
Carlisle Etcetera blouse return.
Sauceda set up a different webpage on another domain he owned (shallybrady.com) and
Hovanec sent Miller an email to Miller’s personal email account [e-mail] about
the message from Carlisle Etcetera and the blouse refund. Sauceda created an image of the
Carlisle Etcetera email on the shallybrady.com webpage. On May 17, Hovanec emailed
[e-mail] a link to the image, writing “I received this from Etcetera yesterday.”
The email indicated that, to see the entire image, Miller would have to click on the link, which
would take her to the shallybrady.com webpage with the statcounter code. Miller clicked on the
image, which took her to the shallybrady.com webpage, and the statcounter report showed the
IP address 108.65.34.232, with the user having a Mac operating system (OS X) with a Safari

However, the “exhibit D” within the report shows only a location of “San Antonio, Texas” and does not otherwise
indicate a location near Hovanec’s home. In addition, during his deposition, Sauceda testified only that statcounter
“will identify things like this person lives in the San Antonio area.” Sauceda depo. at 82. Thus, there is no supporting
evidence before the Court that statcounter identified the user as being in close proximity to Hovanec’s house.
5
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browser, and an AT&T U-Verse account.5 This was the same IP address and information as the
[e-mail] visitor.
On May 17, 2016 at 3:38 p.m., Hovanec sent an email to Miller that included a
preservation of records letter from her attorney. Docket no. 77 Ex. K. Miller admitted receiving
the email. Miller depo. at 142. She testified that she did not take any action that day or afterwards
to preserve the type of information described in the letter. Id. at 144. However, she called a
friend who was an attorney. Id. at 145.
Later on May 17, Sauceda sent another email as [e-mail] to
[e-mail], and received a delivery failure notification from Gmail that the
account did not exist. Sauceda report Ex. H. Discovery from Google reveals that the
[e-mail] email was deleted on May 17.6 Hovanec suspects that Miller deleted
the email account after receiving the email from Hovanec’s lawyer. Hovanec Aff. (docket 771) at 23.
On May 17, Miller called Hovanec’s father and left a voice message saying, “I’m very
worried about Alison and that’s why I’m calling you. Something has to be done. She needs help.

Sauceda’s report states that the user clicked on the email link twelve times on May 17 from 12:06 p.m. to 3:33
p.m. This assertion is not entirely supported by the documentation on file, which includes an excel spreadsheet that
does show twelve visits from the IP address but does not include dates or times. Docket no. 74-6. Miller testified
at her deposition that she clicked on the link and was confused because it took her to the shallybrady.com website
and apparently did not show the email. Because she was confused and thought the link might be broken, and
“wanted to see what Etcetera might have said,” she clicked on the link numerous times. Miller depo. at 139-141,
155.
5

Google responded to a subpoena from Defendant’s counsel in October 2018. The response shows that the
[e-mail] email account was created May 16, 2016 and deleted May 17, 2016. There is no user
IP data provided. Docket no. 75-8.
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Please call me.” Miller depo. at 135. Miller testified that she looked up his phone number online.
Id.
On May 18, Hovanec made a routine review of her AOL email account, which she had
used since 2001, and discovered that all of her 9,780 emails had been deleted. Many of these
emails contained confidential attorney-client communications concerning her divorce
proceedings. Although Hovanec and her ex-husband Moises Luevano had reached a Mediated
Settlement Agreement on May 14, 2015, they still had not entered a final decree of divorce in
May 2016. Hovanec contacted AOL and was informed that Luevano was the primary account
holder and she was only a sub-accountholder. Hovanec then sought and obtained records
regarding activity on the account and found that Luevano had accessed the account at 5:53 p.m.
(after he had deleted the emails) to surreptitiously override the password changes that Hovanec
made immediately after she learned that the emails had been deleted so that he could keep her
out of her own email account. Hovanec learned that Luevano had always possessed the ability
to access her emails, and realized that he had been accessing her emails throughout their
marriage and during the pendency of their divorce to obtain information.
In the following months, Hovanec spent a considerable amount of time reorganizing her
deleted emails and incurring legal expenses in connection with “the computer breach.” In this
process, on October 13, 2016, she accessed an old iCloud account to recover some personal
emails and photographs that had been placed in her iCloud through her iPhone. In September
2015, Hovanec had stopped using her iPhone and iCloud because she felt that her information
may have been compromised and that Luevano could track her whereabouts. Because she could

7

not recall her password, she contacted Apple and was emailed a link to reset her password and
gain access to the iCloud account that she had not accessed for approximately thirteen months.
Upon opening her iCloud using her old Apple ID email address [e-mail],
Hovanec discovered an email to that address from Google at 10:52 a.m. on May 16 stating that
there was a request to add [e-mail] email to “your Google account.” Another email
was sent to that address stating that the [e-mail] account had been created at
10:53 a.m. The first email required the user to click a link to “verify” the request to add
[e-mail] to the Google account.

Plaintiff alleges that Miller accessed her

[e-mail] email account to click the link to verify the addition of
[e-mail] to the [e-mail] account. Another email was sent to the
[e-mail] address on May 17 at 4:28 stating that the Google account
[e-mail] was deleted, and “[y]ou received this message because
[e-mail] is listed as the recovery email for [e-mail].” Plaintiff
contends that this shows that Miller, who Plaintiff contends was the user behind
[e-mail], had access to her iCloud account and clicked on the link in the email
to verify the addition of [e-mail] to the alisontheloser Gmail account.
Plaintiff filed her Original Complaint on August 14, 2017 against Miller and Luevano
for violations of the Federal Wiretap Act, the Texas Criminal Wiretap Act, the Computer Fraud
and Abuse Act (“CFAA”),7 civil conspiracy, intrusion on seclusion, intentional infliction of

7

The CFAA prohibits certain intentional or knowing access to a protected computer without authorization.
18 U.S.C. § 1030; Larson v. Hyperion Intern. Technologies, LLC, No. 12–50102, 494 F. App’x 493, 497 (5th Cir.
2012). The statute provides a civil remedy for any person who suffers damage or loss resulting from such a
violation. 18 U.S.C.A. § 1030(g); Fiber Systems Intern., Inc. v. Roehrs, 470 F.3d 1150, 1156 (5th Cir. 2006).
8

emotional distress (against Miller only), and breach of fiduciary duty (against Luevano only).
Defendant Luevano filed a motion to dismiss, arguing that all the claims against him had to be
dismissed and submitted to arbitration. Defendant Miller filed a motion to dismiss all the claims
against her for failure to state a claim under Rule 12(b)(6). Plaintiff then filed an Amended
Complaint as of right, adding a claim under the Stored Communications Act (“SCA”).8
The Court granted Luevano’s motion to dismiss the claims against him because they
were subject to an arbitration agreement. The Court also granted in part and denied in part
Miller’s motion. Docket no. 22. Specifically, the Court dismissed the Federal Wiretap Act and
Texas Criminal Wiretap Act claims because Hovanec failed to establish that Miller
“intercepted” any emails. As to the CFAA claim, the Court dismissed the claim for failure to
establish the required losses, but granted leave to replead. The Court also dismissed the
conspiracy claims. The Court denied the motion to dismiss the intrusion on seclusion and
intentional infliction of emotional distress claims. Because the SCA claim was added after the
motion to dismiss was filed, the Court did not address that claim. The Court then issued a
scheduling order and set the case for a status conference on May 2, 2018.
On April 16, Plaintiff provided her Initial Disclosures to Miller through her attorney
Adam Cortez. Hovanec’s initial disclosures listed three individuals as persons with discoverable

The SCA “regulates the intentional access of stored electronic communications and records.” Borninski v.
Williamson, No. 3:02-CV-1014-L, 2005 WL 1206872, at *11 (N.D. Tex. May 17, 2005). Under the SCA, whoever:
(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, alters, or prevents
authorized access to a wire or electronic communication while it is in electronic storage in such system shall be
punished....” 18 U.S.C. § 2701(a)(1); see also Garcia v. City of Laredo, Tex., 702 F.3d 788, 790 (5th Cir. 2012)
(stating that the SCA “prohibits accessing without authorization a facility through which an electronic
communication service is provided and thereby obtaining access to an electronic communication while it is in
electronic storage”).
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information: Alison Hovanec, Marilyn Hovanec (“can offer testimony regarding the events
giving rise to this cause of action”), and Joel Sauceda (“has relevant information regarding the
methodology used to determine the IP address of the Defendant MILLER”). The initial
disclosures did not list any category of document or specific document that would be relevant
to damages, other than broadly including a catchall category of “[a]ny other documents in any
form that Plaintiff has in her possession, custody or control that may be relevant to any claim or
defense.” Docket no. 75-4 (Initial Disclosures). Under “Computation of Damages,” Plaintiff’s
counsel wrote, “The Plaintiff is seeking damages that are still being calculated. The Plaintiff is
also seeking reasonable attorney’s fees as those are permitted by law” Id. According to Miller’s
motion for summary judgment, Hovanec did not supplement her disclosures or “produce any
documentation on fees she claimed were permitted by law.” Docket no. 75 at ¶ 13. Further, at
her December 2018 deposition, Hovanec confirmed that no documents had been produced that
establish actual damages. Hovanec depo. at 129-130.
On April 17, Plaintiff’s counsel moved to withdraw, and thus Hovanec and her counsel
were both ordered to appear at the status conference. At the status conference, the Court
permitted Plaintiff’s counsel Adam Cortez to withdraw and gave Plaintiff an opportunity to find
new counsel. Plaintiff’s new counsel John Carroll entered an appearance on May 21 and then
filed motions seeking more time to complete discovery and designate experts and for leave to
amend her complaint. Docket nos. 38, 39, 40. Miller, in turn, moved to dismiss all of Hovanec’s
claims with prejudice.
On June 7, the Court denied Miller’s motion because the requirements for an involuntary
dismissal with prejudice had not been demonstrated and granted Plaintiff an additional thirty
10

days to respond to Defendant’s interrogatories and requests for production that were served on
May 8 (making them due July 7, 2017). Docket no. 44. On June 13, the Court granted Plaintiff’s
motion for leave to file her Second Amended Complaint, which remains the live pleading. On
June 15, the Court issued an amended scheduling order with a discovery deadline of October
31, 2018. Docket no. 47.
On July 2, Plaintiff Hovanec filed her expert designations, designating Joel Sauceda and
Steven Scott Broderhausen as experts. Docket no. 49. On July 31, Miller moved to extend her
expert designation deadlines, and the Court granted an extension until September 4, 2018.
Docket no. 50 & Text Order dated August 1, 2018. On September 5, 2018, Miller again moved
to extend her expert designation deadlines, and the Court granted an extension until October 5,
2018. Docket no. 54 & Text Order dated September 6, 2018. Miller designated her expert,
Russell McWhorter, on October 5. Docket no. 61.
On September 28, Miller filed two motions to quash seeking to quash depositions of
herself, her husband and fact witness Jason Miller, and expert Russell McWhorter (docket no.
57), as well as a subpoena issued by Hovanec to non-party AT&T (docket no. 58). The motions
were referred to Magistrate Judge Farrer, who issued an order to confer and set the motions for
a hearing on October 16. Docket no. 62. After conferring as ordered, the parties agreed that the
depositions, as well as certain additional depositions, could proceed outside the discovery
deadline of October 31, 2018, and asked the Court to approve an extension of the discovery
deadline for the purpose of allowing the depositions. Docket no. 63. Miller also agreed to
withdraw her objections to the third-party subpoena on AT&T. Magistrate Judge Farrer then
cancelled the hearing, mooted the motions to quash, and ordered that the deadline to complete
11

discovery was extended to November 28, 2018 “for the sole purpose of completing the
depositions referenced in the parties’ joint advisory.” Text Order dated October 24, 2018.
On November 15, 2018, Miller filed an unopposed motion to extend the scheduling order
deadlines for dispositive motions (from November 19, 2018 to January 15, 2019). Docket no.
64. The Court granted the motion and also continued the trial date from February 25, 2019 to
April 8, 2019. Docket no. 65 & Text Order dated Nov. 20, 2018. On December 28, Miller filed
another unopposed motion to extend the deadline for filing dispositive motions to February 15,
2019. Docket no. 66. The Court granted the motion and also re-set the trial date to June 3, 2019.
Docket no. 67 & Text Order dated Jan. 3, 2019. At no time did either party file a motion seeking
to extend the discovery deadline, which had expired on October 31, 2018, except as extended to
November 28 for depositions as ordered by Magistrate Judge Farrer.
The parties conducted depositions in late November and on December 5 and December
10, 2018. Miller contends that Sauceda’s deposition was the first time Miller was made aware
of the different GUIDs (globally unique identifiers) shown on the statcounter report and that it
was the first time her expert had access to the statcounter data in native format. During the
deposition, Sauceda logged into the program with Miller’s expert McWhorter so that
McWhorter could view the program and the data.
On January 17, 2019, Hovanec filed an opposed motion to compel responses from Miller
to Hovanec’s requests for production, seeking an order overruling Miller’s objections to certain
specific requests and requiring production. Docket no. 68. According to the motion, Hovanec
served interrogatories and requests for production on Miller on August 15, 2018, and Miller
timely responded on September 21, 2018, pursuant to an agreement between the parties to
12

extend the deadline. Hovanec’s requests for production included RFP 3 “[a]ll data that was
stored, retrieved, downloaded, restored, reconstructed, removed, deleted, salvaged, regenerated,
and/or forensically extracted from the computer devices used by TRACI MILLER related to
this action during the period of May 1, 2015 to the present time” and RFP 22 “Produce your
MAC laptop, IPAD and smartphones used during the following time periods for inspection and
retrieval of information under the guidelines set forth on the attached Exhibit ‘A’ utilizing search
terms as set forth in these requests for production which you used during the following time
periods: a. September 1, 2014 to July 1, 2015; b. April 1, 2016 to October 1, 2016; c. August 1,
2017 to present.” Hovanec sought an order overruling Miller’s objections and compelling
responses.
The Court referred the motion to Magistrate Judge Farrer, who scheduled it for a hearing
on February 7. Miller then filed a motion asking for a hearing on Hovanec’s objections to
Miller’s Rule 45 subpoena at the February 7 hearing. Docket no. 70. Miller had served a Rule
45 subpoena on Hovanec via email on January 25, 2019. The subpoena directed Hovanec to
produce her Apple laptop computer owned or utilized during April and May 2016 and to permit
inspection and forensic imaging of the device and subsequent analysis of the data (limited to
“the use and/or creation of the email address [e-mail] and any other alleged
act against Ms. Alison Hovanec”). Hovanec had objected to the subpoena on the grounds that it
was improperly served, unreasonably required same-day production, was an attempt to
circumvent the requirements of Rule 34 by requesting the same item as certain RFPs previously
served pursuant to Rule 34, and was filed outside the discovery period in an attempt to
circumvent that deadline.
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The Court denied the motion to set a hearing on the subpoena objections before Judge
Farrer because no motion pertaining to the subpoena was currently pending for referral to Judge
Farrer for him to consider at a hearing -- Hovanec had not moved to quash the subpoena and
Miller had not moved to enforce it. The Court further noted that there were numerous problems
with the subpoena, including that it was issued after the close of discovery and had been objected
to under Rule 45(d)(2)(B). The Court directed the parties to confer and to file either a motion to
compel or a motion to quash the subpoena, in which case the Court would consider the subpoena
and any objections to it. The Court noted that, if no motion was filed, the Court would consider
the issue resolved. No motion was filed.
The parties conferred on Hovanec’s motion to compel as directed by Magistrate Judge
Farrer and advised that, as to RFP 3 and RFP 22, they agreed “that Ms. Hovanec will provide
protocol for examination of the requested data for Ms. Miller’s review and discussion prior to
production of any such data.” Docket no. 71. On February 7, Magistrate Judge Farrer held a
hearing and denied Hovanec’s motion to compel, primarily on the basis that it was untimely.9
On February 15, Miller filed a motion to exclude Plaintiff’s expert Joel Sauceda, and
filed the instant motion for summary judgment. On July 2, the Court granted in part and denied
in part the motion to exclude, ordering that Sauceda would be permitted to testify about the
emails sent to [e-mail] and [e-mail] with links to Sauceda’s
webpages containing the statcounter code, and the resulting webpage views reported by

Pursuant to Local Rule CV-16(d), “Absent exceptional circumstances, no motions relating to discovery, including
motions under Rules 26(c), 29, and 37, shall be filed after the expiration of the discovery deadline, unless they are
filed within 7 days after the discovery deadline and pertain to conduct occurring during the final 7 days of
discovery.”
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9

statcounter and the information reported by statcounter, including the IP addresses. Docket no.
85. The Court concluded that Sauceda would not be permitted to testify that Traci Miller was
the user/creator of [e-mail]. Id.
Miller raises three primary arguments in her motion for summary judgment: First, that
she is entitled to summary judgment on all claims because there is no evidence of damages or
loss for any claim. Second, she is entitled to summary judgment because Hovanec has failed to
produce evidence that Miller had access to her iCloud account. And third, she is entitled to
summary judgment because there is no evidence that Miller created or used the
[e-mail] account. In response, Hovanec submits her own affidavit as evidence
of damages and contends that she has provided sufficient evidence to raise a fact issue as to
whether Miller created the [e-mail] email account and accessed Hovanec’s
iCloud account. Hovanec further contends that Miller improperly failed to preserve evidence,
including her wireless router, iPhone, text and email messages, and computer, and asks the Court
to apply a spoliation presumption that the lost evidence would have supported Plaintiff’s claims.
Summary Judgment Standard
Summary judgment is proper when the evidence shows “that there is no genuine dispute
as to any material fact and the movant is entitled to judgement as a matter of law.” FED. R. CIV.
P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-52 (1986). A dispute of a material
fact is “genuine” if the evidence is such that a reasonable jury could return a verdict in favor of
the nonmoving party. Anderson, 477 U.S. at 248. Rule 56 “mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who fails . . . to
establish the existence of an element essential to that party’s case and on which that party will
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bear the burden of proof at trial.” Curtis v. Anthony, 710 F.3d 587, 594 (5th Cir. 2013) (quoting
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
The Court must draw reasonable inferences and construe evidence in favor of the
nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Although the evidence is viewed in the light most favorable to the nonmoving party, a
nonmovant may not rely on “conclusory allegations, unsubstantiated assertions, or only a
scintilla of evidence” to create a genuine issue of material fact sufficient to survive summary
judgment. Freeman v. Tex. Dep’t of Criminal Justice, 369 F.3d 853, 860 (5th Cir. 2004). The
court “may not make credibility determinations or weigh evidence” in ruling on a motion for
summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 (2000);
Anderson, 477 U.S. at 254-55.
Analysis
I.

No evidence of damages
Miller first moves for summary judgment on the basis that there is no evidence of

damages to support recovery on any claim. Miller contends that there is no evidence because
(1) Plaintiff did not produce “a computation of each category of damages claimed by the
disclosing party” or provide any supporting evidence of damages in her initial disclosures as
required by Federal Rule of Civil Procedure 26(a)(1)(A)(iii); (2) Hovanec refused to answer
questions about her damages during her deposition, continuously citing attorney-client
privilege; (3) no expert provided any evidence of damages; and (4) no witnesses have been
identified as testifying on damages.

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In response, Plaintiff makes the following arguments: (1) she may recover statutory
damages for her SCA claim, which requires no showing of harm other than violation of the
statute,10 and she may also recover punitive damages because the violation was willful or
intentional; (2) in any event her Affidavit establishes actual damages for the SCA claim because
she describes how she was required to expend time and money to remediate the effects of the
SCA violations11 and describes her mental anguish; (3) she has presented evidence of her actual
mental anguish damages in her Affidavit, which establishes actual harm for her CFAA claim,
her intrusion on seclusion claim, and her intentional infliction of emotional distress claim; and
(4) her mental anguish is corroborated by the affidavits of her mother Marilyn Hovanec and
friend Mark Murrietta.
Other than the three referenced affidavits, Hovanec does not purport to rely on any
documents to establish damages. She correctly asserts that her own Affidavit alone may be
sufficient to deny summary judgment. “[A]n affidavit based on personal knowledge and
containing factual assertions suffices to create a fact issue, even if the affidavit is arguably selfserving.” C.R. Pittman Constr. Co. v. Nat’l Fire Ins. Co., 453 F. App’x 439, 443 (5th Cir.
2011).12

10

Hovanec does acknowledge a split of authority on whether a plaintiff may recover statutory damages in the
absence of showing any actual damages. Docket no. 77 at 17.
Hovanec’s Affidavit contains a paragraph discussing how she had spent time recovering the emails deleted from
her AOL account (¶ 34), but does not detail any time spent with regard to her iCloud account. Hovanec appears to
allege that her ex-husband Moises Luevano deleted her AOL emails, but may also be alleging that Miller conspired
with him in doing so.
11

12

In contrast, conclusory and self-serving statements offered to support a theory rather than statements of fact based
on personal knowledge are generally insufficient to create a fact issue. See DIRECTV v. Budden, 420 F.3d 521, 531
n.49 (5th Cir. 2005); Lechuga v. S. Pac. Transp. Co., 949 F.2d 790, 798 (5th Cir. 1992) (“Conclusory statements
17

Hovanec’s Affidavit states the following: (1) she was upset when her mother contacted
her about having received the email from [e-mail] (¶ 16); (2) after
discovering that she had also received an email, she “remained with [her] friend Mark Murrietta
for the remainder of the afternoon as he was consoling [her] in regard to the frightening matters
that were happening” (¶ 17); (3) she was alarmed and placed in fear for her safety after someone
she suspected was Miller or acting in concert with her sent a harassing text message from a free
google number from someone impersonating a man attempting to lure her into a private
conversation and then turning aggressive after she rejected the meeting (¶ 23); (4) her life has
been “forever changed since the moment [she] met Traci Miller in 2013 and allowed her into
[her] life” (¶ 42); (5) she has been diagnosed with PTSD for which there is no cure and which
can only be managed by lifelong psychotherapy and her life is filled with triggers that create a
post-traumatic stress response to seemingly normal things (¶ 45); (6) she is afraid of Miller and
that Miller will continue to defame and harass her in retaliation for filing this lawsuit and that
she might eventually physically harm her (¶ 45); (7) Miller “stole [her] life” and she will “never
be the same person [she] was before [she] met Traci Miller and will have a life long struggle
with Post Traumatic Stress Disorder and the mental anguish, isolation, sorrow, fear, humiliation
and constant distress” (¶ 46).
Marilyn Hovanec’s Affidavit includes the following statement, “Alison contacted me to
inform me that she too received a message from this person and she was extremely frightened.”
Docket no. 77-4 ¶ 3. Mark Murrietta’s Affidavit includes the following statement, “At the time

in an affidavit do not provide facts that will counter summary judgment evidence, and testimony based on
conjecture alone is insufficient to raise an issue to defeat summary judgment.”).
18

Alison [received the email she] was recently unemployed and looking for a new job and had
many concerns for her children so the comments about being a loser, in a downward spiral and
not being able to keep a job and take care of her and her children at 40 years old were
devastating, especially since it was coming from a stranger using her name and communicating
with herself and her family. . . Alison told me that she was terrified to go home and felt the
safety of her and her children were at stake. I remained with Alison, consoling her, for the rest
of the afternoon until approximately 3:45 p.m. in the Olmos Park area until she felt it was safe
to return home alone when neighbors would be returning from work.” Docket no. 77-5 ¶ 3.
In reply, Miller objects to the affidavits of Alison Hovanec, Marilyn Hovanec, and Mark
Murrietta because they were not provided during the discovery period and “are replete with
inadmissible assertions, speculation and hearsay.” However, none of the specific objections to
Alison Hovanec’s Affidavit are relevant to damages. As to Marilyn Hovanec’s affidavit, Miller
contends that paragraphs 2 and 3 are hearsay. Miller also objects to the Affidavit of Mark
Murrietta as hearsay. Miller further argues that Hovanec’s Affidavit “does not show damage”
and that Plaintiff has failed to produce evidence to substantiate her claims “for more than 18
months.” Docket no. 80 at 5.
The Court permitted Hovanec to file a Sur-Reply to address Miller’s objections to her
summary-judgment evidence. Docket no. 82. Therein, Hovanec correctly responds that she may
create and submit affidavits to respond to the motion for summary judgment, and there is no
requirement that they have been previously produced in discovery. She also responds that the
alleged hearsay in Marilyn Hovanec’s and Murrietta’s affidavits relevant to damages is already

19

in evidence through Hovanec’s Affidavit and that Hovanec will testify at trial. Further, she has
designated both Marilyn Hovanec and Mark Murrietta as trial witnesses.
Hovanec’s Affidavit is sufficient to raise a fact issue on the existence of actual damages,
at least with regard to mental anguish damages. Because Plaintiff has produced some evidence
of mental anguish damages in her Affidavit and can testify to her damages at trial, a no-evidence
motion for summary judgment is not the appropriate way to resolve the damages issue at this
time. Rather, the Court must consider whether the fact that Hovanec failed to provide damages
information in her initial disclosures and refused to answer questions about damages at her
deposition precludes her from offering damages evidence at this stage with regard to some or
all claims. If certain evidence is excluded, then summary judgment may be appropriate, but the
Court must first determine whether exclusion is warranted. See E.E.O.C. v. Service Temps, Inc.,
No. 3:08-CV-1552-D, 2010 WL 1644909, at *5 (N.D. Tex. Apr. 22, 2010) (noting that the
failure to comply with Rule 26 is insufficient alone to warrant summary judgment on damages
and that, instead, “[t]o obtain summary judgment on this basis . . . [defendant] would be required
to establish a right to relief under Rule 37(c) and, having secured that remedy, then point to the
absence of evidence to support a claim that depends for its viability on evidence that the
[plaintiff] can no longer use”).
This issue is governed by the Federal Rules of Civil Procedure concerning discovery.
The Rules of Civil Procedure require each side to produce initial disclosures without awaiting a
discovery request, including “a computation of each category of damages claimed by the
disclosing party – who must also make available for inspection and copying as under Rule 34
the documents or other evidentiary material, unless privileged or protected from disclosure, on
20

which each computation is based, including materials bearing on the nature and extent of injuries
suffered.” FED. R. CIV. P. 26(a)(1)(A)(iii). Further, “[a] party must make its initial disclosures
based on the information then reasonably available to it. A party is not excused from making its
disclosures because it has not fully investigated the case or because it challenges the sufficiency
of another party’s disclosures or because another party has not made its disclosures.” FED. R.
CIV. P. 26(a)(1)(E). Last, a party who has made a disclosure under Rule 26(a) must supplement
its disclosure “in a timely manner if the party learns that in some material respect the disclosure
or response is incomplete or incorrect, and if the additional or corrective information has not
otherwise been made known to the other parties during the discovery process or in writing.”
FED. R. CIV. P. 26(e)(1)(A).
“If a party fails to make a disclosure required by Rule 26(a), any other party may move
to compel disclosure and for appropriate sanctions.” FED. R. CIV. P. 26(a)(3). Further, if a party
fails to provide information as required by Rule 26(a) or (e), “the party is not allowed to use that
information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the
failure was substantially justified or is harmless. In addition to or instead of this sanction, the
court, on motion and after giving an opportunity to be heard: (A) may order payment of the
reasonable expenses, including attorney’s fees, caused by the failure; (B) may inform the jury
of the party’s failure; and (C) may impose other appropriate sanctions, including any of the
orders listed in Rule 37(b)(2)(A)(i)-(vi).” FED. R. CIV. P. 37(c)(1).13

Here, no motion for sanctions under Rule 37(c) has been filed. Unless a motion is filed, only the “self-executing”
exclusion sanction of Rule 37(c) can be applied.
21
13

Because of the way this issue has been presented (via a no-evidence motion for summary
judgment), neither party addresses the relevant guidelines or factors for exclusion under Rule
37(c). Defendant did not seek any intermediate remedies or sanctions under Rule 37, such as by
filing a motion, and instead has essentially moved directly to exclusion. However, Defendant’s
failure to move to compel does not excuse Plaintiff from complying with Rule 26(a), and the
language of Rule 37 does not require a motion to compel before its exclusion sanction may
apply.14 However, before Rule 37(c) sanctions are applied, the opposing party must bring the
failure to comply with Rule 26(a) to the court’s attention, preferably in a timely manner, so that
the court can address whether the failure was substantially justified or harmless.
Plaintiff’s Second Amended Complaint seeks “actual damages in the sum of not less
than $1,000,000.00” and “exemplary damages in the sum of $250,000.00.” As noted, Rule 26(a)
required Plaintiff to provide a computation of each category of damages claimed, with reference
to supporting documents or other evidentiary material, unless privileged or protected from
disclosure, upon which each computation is based, including materials bearing on the nature
and extent of injuries suffered. The allegations in the Complaint further assert that Plaintiff has
suffered unspecified “actual damages” for violations of the SCA, has “suffered injury, mental
anguish, and damages” for intrusion on seclusion, and has suffered “severe emotional distress”
for the intentional infliction of emotional distress. Second Am. Compl. ¶¶ 52, 59, 60.

14

The Advisory Committee notes refer to the Rule 37(c) sanction as self-executing, and courts have held that a
motion to compel is not required to impose Rule 37(c) exclusion sanctions. See In re High Standard Mf’g Co., No.
16-3133, 2017 WL 3701223, at *6 (S.D. Tex. Bankr. Aug. 24, 2017) (citing cases); Adv. Comm. Note to 1993
Amendment to subdivision (c) (“The revision provides a self-executing sanction for failure to make a disclosure
required by Rule 26(a), without need for a motion [to compel disclosure] under subdivision (a)(2)(A). . . This
automatic sanction provides a strong inducement for disclosure of material that the disclosing party would expect
to use as evidence, whether at a trial, at a hearing, or on a motion, such as one under Rule 56.”).
22

In response to the Court’s order on the motion to dismiss, which noted that the CFAA
requires a plaintiff to establish loss exceeding $5000, Plaintiff set forth allegations of “damages
under the CFAA,” in which she asserts that she “is entitled to recover damages for the time she
spent investigating and remedying the violations of the CFAA committed by Miller as well as
the expenses incurred in connection with same.” Id. ¶ 57. She alleges that she is entitled to be
compensated at a rate of at least $25 per hour for every hour she was “forced to spend to respond
to and remedy the CFAA violations” and that she has had to expend “at least 150 hours” on the
violations by Miller, for a total of $14,500. Id. The Complaint further alleges that Plaintiff is
entitled to recover the income/revenue that she lost as a result of Miller’s alleged use of
information she accessed in Plaintiff’s iCloud account that led to Plaintiff’s termination from W
by Worth, and that this is “well in excess of $5000 per year since she lost her position in May
15.” Id. The Complaint alleges that Plaintiff is entitled to recover fees paid to experts
Broderhausen and Gallant to evaluate and respond to the CFAA violations, which at the time
were approximately $5,000 and “still accumulating at the rate of $275.00 per hour.” Id. Last,
she alleged that she was entitled to attorney’s fees for expenses incurred to address the CFAA
violations.
Plaintiff has offered no explanation for the failure to disclose her damages computations
initially or through supplementation. Plaintiff’s deposition was taken December 10, 2018, after
written discovery was closed. Miller’s counsel attempted to ask Plaintiff questions clarifying
the nature and extent of her damages claims, but Plaintiff often did not understand the question
and repeatedly invoked attorney-client privilege.

23

Miller’s counsel asked, “What are the damages that you believe that you have suffered
as a result of the allegations that you have brought?” Plaintiff did not understand the question
and answered, “Extraordinary.” Hovanec depo. at 77-78. Miller’s counsel asked, “Has it caused
you to have PTSD?” and Hovanec answered “yes,” but she was unable to attribute how much
of her PTSD might be attributable to Miller’s alleged actions as opposed to her divorce. Id. at
77-78. Plaintiff contended that Miller had bullied her since the litigation began by alienating her
from her friends and this was included in her IIED claim, but she invoked attorney-client
privilege when pressed further. Id. at 80-81. When asked about how much she felt she should
receive in damages for her IIED and intrusion on seclusion claims, Plaintiff responded that
“there’s no cap,” “it’s up to the jury,” and that she could not provide an amount or a calculation.
Id. at 83-84.
When Miller’s counsel attempted to obtain information about the CFAA damages,
Plaintiff stated that she would have to refer to her attorney, and “I have a log I’ve, you know,
written somewhere, I guess.” Id. at 85. Apparently, however, that log was “in her attorney-client
communications” and she claimed privilege, and also asserted that “we haven’t come to the
point in our court proceedings where this has been – where we need to have this all put together
and presented.” Id. at 88. Referring to the allegations in the Complaint that Plaintiff had
expended 580 hours in investigating CFAA violations by Miller and Luevano, Miller’s counsel
asked “I’m asking you whether or not you have any evidence that establishes or provides backup
for your claim that you spent 580 hours on these violations,” and Plaintiff responded, “it’s with
my attorneys.” Id. at 93. Counsel asked, “And would something have to be created in order to
be able to show some type of backup for the 580 hours?” and Hovanec responded, “I don’t think
24

so. But it might need to be put into a format for you however, you know, you want it.” Id. at 94.
Counsel asked Plaintiff how she intended to prove her damages in front of the jury and Plaintiff
responded, ‘I have an attorney here and that’s attorney-client privilege. I mean, that’s
discussions that I’m going to have with my attorney in how we want to present that.” Id. Counsel
asked, “are you aware of the fact that you have not produced any evidence to me that supports
that you have worked 580 hours on responding and remedying the violations of the Computer
Frauds Act?” and Plaintiff responded, “Yes. I’m aware that you don’t have it yet.” Id. at 95.
Later, Miller’s attorney asked what amount of damages Plaintiff was going to ask a jury
to award for the SCA violations, and Hovanec stated “It’s attorney-client privilege.” Id. at 112113. Miller’s counsel responded, “Your damages is not attorney-client privilege,” and Hovanec
responded, “At this time. Because it’s discussions that I’ve had with my attorneys.” Id. at 113.
Miller counsel then asked, ‘You have no personal opinion then, as to what you should be
awarded if this case goes to trial and a jury makes findings against Traci Miller,” and Plaintiff
responded, “At this time, no.” Id. She answered the same for each cause of action. Id.
When asked about her attorney’s fee payments, Plaintiff responded “I didn’t pay the bill.
. . . Somebody else did. And that’s attorney-client privileged communication.” Id. at 114-115.
When asked what was the basis for the $1 million in actual damages sought, Plaintiff responded,
“That’s attorney-client privilege.” Id. Plaintiff appeared to be confused about whether the
question asked for an amount of actual damages or the underlying bases for the damages, stating
“I don’t know what the actual damages are at this time because there are sections in here [the

25

Complaint] that don’t have a cap on them.” Id. at 120. Counsel’s further questioning about the
basis for her $1 million demand led to further confusion.15
In the end, Plaintiff refused to answer any questions relevant to her damages:
Q. If Traci Miller accessed your iCloud account as you allege, how did it
cause you actual damages in the sum of not less than 1 million dollars? . . .
A. I’m just trying to figure out, you know – because I can’t give you that
answer. Like I’ve said, it’s up to a jury and it’s up for presentation of the case.
Q. No ma’am. Not with actual damages. Actual damages are damages
you really did incur as a result of these types of . . . torts and violations that you
allege. . .. if Traci Miller accessed your iCloud account, how did that cost you
actual damages in the sum of not less than 1 million dollars?
A. It might have cost me more than a million dollars.
Q. Right. And I’m trying to figure out how it did.
A. And I don’t have the numbers for you today. . .
Q. Ms. Hovanec – and when you assert actual damages. I am entitled to
be able to figure out, find out what those actual damages are.
A. And I can’t speak to that because it’s attorney-client communication.
It’s attorney –
Q. Your damages ma’am –
A. attorney-client.
Q. Your damages are not attorney-client privilege.
A. They are at this time.

15

Q. Did you have to pay anybody a million dollars as a result of the acts that you allege took place in your Second
Amended Complaint? A. I think that’s – no. I mean, the answer is no, not a million dollars. Q. Okay. Did you pay
multiple parties increments that added up to a million dollars as a result of the acts that occurred allegedly and
asserted in your Second Amended Complaint? A. Was I supposed to?
26

Q. So am I to understand from your testimony at this time that you are
not prepared to provide me with any evidence of your actual damages in this
case?
A. Yes. You’re correct.
Q. Okay. And ma’am, there are no documents that you have produced to
your knowledge that establish any of the actual damages that you assert in the
Second Amended Complaint filed in this lawsuit.
A. That is correct.
Id. at 126-130.
It is clear that most of the time Hovanec was not understanding the questions being asked
and that she often was mistaken about whether information was subject to attorney-client
privilege. However, counsel on both sides failed to adequately deal with the problems that arose
during the deposition. Hovanec’s counsel should have been able to discern what Miller’s counsel
was asking for, and should have explained to Hovanec how to appropriately answer the
questions and that most of the information being sought was not in fact subject to attorney-client
privilege. Instead, Hovanec’s counsel sat idly by and did nothing to make the deposition
productive on the damages issue. However, Miller’s counsel also failed to move to compel or
otherwise seek available relief from the Court for Hovanec’s refusal to answer basic questions
about damages, possibly because the parties waited to conduct the deposition after the discovery
deadline, thus limiting court intervention to “exceptional circumstances.” Neither party sought
to re-open discovery, despite the myriad discovery problems that had arisen.
Rule 26’s requirements and the Rule 37 sanctions aim to prevent an ambush, resulting
in surprise or prejudice, of undisclosed or late-disclosed evidence. Joniback Mgmt. Trust v.
Warburg Enters., 136 F. Supp. 3d 792, 808 (S.D. Tex. 2015) (citing Reed v. Iowa Marine &
27

Rrepair Corp., 16 F.3d 82, 85 (5th Cir. 1994)). Plaintiff failed to provide the required disclosures
on damages, and then thwarted Defendant’s attempt to clarify her damages at her deposition.
Plaintiff’s repeated invocation of attorney-client privilege to damages questions during her
deposition was patently improper,16 and Plaintiff’s counsel failed to advise Plaintiff to answer
the questions as he should have. As a result of the failure to provide required disclosures and
Plaintiff’s refusal to answer questions during her deposition, Plaintiff essentially provided no
evidence of damages (other than testifying that she has PTSD) until responding to Defendant’s
motion for summary judgment, and even then the Affidavit provides little in the way of specific
evidence of “losses” as defined by the CFAA or lost wages. Yet Hovanec apparently wishes to
proceed with all of her damages claims and evidence at trial. This is exactly the scenario that
Rule 26 and Rule 37 aim to avoid.
Thus, the Court must consider whether the failure to disclose was substantially justified
or harmless, including whether the information has been otherwise made known during
discovery or in writing. Generally, the burden of proving substantial justification or
harmlessness is on the nondisclosing party. To determine whether a failure to disclose was
harmless, the Court evaluates four factors: (1) the explanation for the failure to disclose; (2) the
importance of the information; (3) potential prejudice to the opposing party of including the
evidence; and (4) the availability of a continuance to cure such prejudice. CQ, Inc. v. TXU Min.
Co., L.P., 565 F.3d 268, 280 (5th Cir. 2009).

16

Plaintiff appeared to be under the mistaken impression that because she had compiled information and sent it to
her attorney or had discussed damages with her attorney, information related to damages was privileged. However,
underlying factual information does not become privileged simply because the client informs her attorney of the
fact in a communication.
28

Again, because of the way this issue has been presented, neither party addresses the
relevant analytical factors. Plaintiff provides no explanation for the failure to disclose, either
through initial or supplemental disclosures, and fails to explain why counsel did not instruct
Plaintiff to answer damages questions at her deposition. Neither party addresses the importance
of the information to Hovanec or prejudice to Miller, a critical factor in the analysis. When
considering prejudice, the court looks both to prejudice to the other party’s ability to evaluate
the case and prepare for trial and prejudice that may occur if the evidence is used at trial. Nor
does either party address whether a continuance could cure any potential prejudice.
The Court thus finds that resolution of the Rule 37(c) exclusion sanction is not feasible
at this time. Rather, the Court will set this issue for a hearing. The Court notes, however, that
Plaintiff is seeking primarily mental anguish damages for her claims. This is alleged in the
Complaint and Plaintiff testified at her deposition that she suffers from PTSD. Since
compensatory damages for emotional distress are necessarily vague and are considered a fact
issue for the jury, they may not be amenable to the kind of calculation disclosure contemplated
by Rule 26(a). Williams v. Trader Pub. Co., 218 F.3d 481, 486 n.3 (5th Cir. 2000). Thus, “courts
have not required a Rule 26 computation regarding the amount of emotional distress-related
compensatory damages claimed in cases in which the plaintiff does not intend to suggest an
amount to the jury. In other words, if the plaintiff intends to suggest a specific amount of
emotional distress-related compensatory damages to the jury, he or she must produce the
disclosures required by Rule 26. If, however, the plaintiff intends to leave the determination of
emotional distress-related compensatory damages solely to the jury, a Rule 26 disclosure is not
required.” E.E.O.C. v. General Motors Corp., No. 3:06-cv-19-WHB-LRA, 2009 WL 910812,
29

at *2 (S.D. Miss. Apr. 1, 2009) (and citing cases); see also E.E.O.C. v. Service Temps Inc., 679
F.3d 323, 334 (5th Cir. 2012) (affirming a district court’s instruction that the EEOC would not
be able to argue a specific damages amount before the jury when it failed to provide damages
computations). Consistent with these cases and Hovanec’s answers at her deposition reflecting
a position that she preferred to leave the determination of compensatory damages for mental
anguish solely to the jury, the Court is inclined to allow her to testify about her mental anguish
but not allow her to suggest a dollar award to the jury at trial. However, the Court will revisit
this issue at the hearing. Further, the parties will need to be prepared to address the extent wo
which evidence of medical expenses related to her mental anguish may be precluded.
Resolution of the damages issue with regard to the CFAA claim is more difficult. As
noted previously in the Court’s order on the motion to dismiss, the CFAA expressly requires a
loss during any one-year period aggregating at least $5,000 in value. Docket no. 22 at 9. The
CFAA defines “loss” as “any reasonable cost to any victim, including the cost of responding to
an offense, conducting a damage assessment, and restoring the data, program, system, or
information to its condition prior to the offense, and any revenue lost, cost incurred, or other
consequential damages incurred because of interruption of service.” 18 U.S.C. § 1030(e)(11).17

Some courts have construed the definition of “loss” to include only the two subtypes of loss set forth in the
CFAA: (1) costs incurred due to investigating, responding to, and correcting damage caused by a violation, and (2)
costs incurred, revenue lost, or other damages resulting from an interruption of service. E.g., Stirling Int’l Realty,
Inc. v. Soderstrom, No. 6:14-CV-1109-Orl-40TBS, 2015 WL 2354803 (M.D. Fla. May 15, 2015). Other courts,
however, have noted that a statute’s use of “including” is illustrative rather than exhaustive, such that “any
reasonable cost” may include costs not expressly delineated in the statute. E.g., Motio, Inc. v. BSP Software LLC,
No. 3:16-cv-00331-O, 2016 WL 9559916, at *15 (N.D. Tex. May 27, 2016) (“[T]he Court declines to follow
Alliantgroup and Quantlab, as they interpret the phrase ‘reasonable cost to any victim, including the cost . . .’ as
strictly limiting the ‘cost’ to the list of terms following ‘including.’”).
30
17

Plaintiff alleges that Miller violated the CFAA by accessing information in Hovanec’s
iCloud account, including emails, contacts, and personal information and then used the
information to make unfounded complaints against Hovanec to her employer, resulting in her
termination in May 2015, and to send the alisontheloser email to Hovanec’s mother. For
damages, Plaintiff alleges that she spent at least 150 hours trying to investigate Miller’s
violations (at a rate of $25 per hour), and that she is entitled to her lost income from her
termination from W by Worth (“well in excess of $50000.00 per year”), expert costs in excess
of $5,000 and accumulating at the rate of $275 per hour, and attorney’s fees in excess of $5000
in both 2016 and 2017. Second Am. Compl. ¶ 57. Thus, although Plaintiff did not provide
damages information in her Initial Disclosures or any supplemental disclosures, some
information was detailed in the Complaint. However, Miller’s attorney was unable to explore
any of these alleged damages due to Hovanec’s improper invocation of attorney-client privilege
during her deposition. Thus, the parties should be prepared to discuss at the hearing whether any
damages evidence specific to the CFAA claim must be excluded from consideration in any
motion or trial.
II.

Whether
there
is
some
evidence
that
Miller
created
the
[e-mail] account and accessed Hovanec’s iCloud account?

Miller moves for summary judgment on the basis that there is no evidence that Miller created
the [e-mail] account and sent the emails to Hovanec and Hovanec’s mother
and that there is no evidence that Miller accessed Hovanec’s iCloud account. Miller points to
Hovanec’s deposition testimony where Hovanec stated that she did not have a theory about how

31

Miller accessed her iCloud account because “I don’t know how she could have done this.”
Hovanec depo. at 65.
Hovanec testified that she logged into her iCloud account in 2015 using Miller’s computer,
which could have cached her login information, and Miller then could have used that to log into
Hovanec’s iCloud account. When asked, “So were you aware that she [Hovanec] had made use
of your computer to access her e-mail account?” Miller responded, “I suppose, yes.” Miller
depo. at 79. Hovanec testified that she did not use the account for a period starting in 2015 and
continuing through October 2016 and thus would not have known if someone was accessing the
account. Miller contends that Hovanec did not attempt to confirm this belief by propounding a
subpoena to Apple seeking information regarding the IP address of the user who accessed the
iCloud account.18 Further, Miller asserts that Hovanec’s experts did not determine how Miller
allegedly accessed the iCloud account, and expert Scott Broderhausen agreed that he could not
identify a particular person behind the [e-mail] account based on the available
information. Miller contends that the Google subpoena response supports her position that she
did not create the email address, but it simply contains no information about the user IP data of

18

In response, Hovanec has provided the Legal Process Guidelines for Apple, Inc. as of September 29, 2015, which
state that iCloud subscriber information and connection logs with IP addresses can be obtained with a subpoena or
greater legal process, and “[c]onnection logs are retained up to 30 days.” Docket no. 77 Ex. M. Hovanec did not
discover evidence indicating unauthorized access to her iCloud account until October 2016, well more than 30 days
after the events of May 2016. Thus, Hovanec asserts that a subpoena to Apple would not have included connection
logs with IP addresses during the relevant time frame. Miller has objected to the Legal Process Guidelines as
unauthenticated and containing hearsay. Docket no. 80 at 5 ¶ 9. Hovanec responds that it can be authenticated and
presented in admissible form, and was offered simply to rebut Miller’s conclusory assertion that Hovanec should
have attempted to confirm that Miller accessed the iCloud account by propounding a subpoena to Apple. The Court
need not rule on the objection because it is unnecessary to resolve the motion for summary judgment, as it pertains
only to what evidence not obtained might or might not have shown, rather than whether the evidence that has been
obtained and provided raises a material fact issue.
32

the user of [e-mail]. Miller also notes that the IP address captured by Sauceda
was not obtained from the offensive emails themselves, but from statcounter, but Miller has not
shown the statcounter information to be unreliable or inaccurate.
Miller asserts that “[t]he allegation that Miller accessed the iCloud account is conclusional
and nothing has been produced to show any evidence in support of Hovanec’s theory.” Docket
no. 75 at 14. However, Plaintiff has provided sufficient evidence to raise a material issue of fact
as to whether Miller was the user who created [e-mail] and whether Miller
accessed Plaintiff’s iCloud account. The fact that the evidence is circumstantial does not make
it conclusory. As noted, Hovanec asserts that Miller could have gained login information to her
iCloud account after Hovanec used Miller’s computer to access the account. Further, Hovanec
offers the following evidence:
● Miller knew of the [e-mail] email account because she sent Hovanec an
email inviting her to the movie in the park on May 13, 2016. Miller depo. at 155.
● On May 16 and 17, Miller’s IP address (confirmed by AT&T subpoena response19) was
revealed as the same IP address of the user of the [e-mail] when the user
clicked on the greenpowur.com link sent by Joel Saucedo that included the statcounter code to
capture IP addresses. In addition, other information revealed by the statcounter code for Traci
Miller testified at her deposition that after receiving a letter from Plaintiff’s attorney, she called AT&T and asked
what her IP address was, and was told it was a different IP address than asserted in the letter. Miller depo. at 148.
She then had an attorney friend send a response letter denying that the IP address 106.65.34.232 belonged to her.
Id. at 148-150. However, the subpoena to AT&T confirmed that the address did belong to her at the relevant time
(January 1, 2016 to June 30, 2016) and Miller’s own expert McWorther has agreed that the IP address was
associated with Miller. Although Miller asserts as relevant in her motion the fact that the IP address was not
captured from the emails themselves but from the statcounter program, Hovanec correctly notes that Miller has not
shown the statcounter tool to be inaccurate or unreliable, as the IP address it captured for Miller has been confirmed,
and all experts agree that an IP address can be captured from a webpage visit, as Sauceda did in this case.
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Miller and the user of [e-mail] was the same (e.g., Mac OS X operating
system).20
● Miller called Hovanec’s father on May 17 and left a voice mail message. Miller testified
that she obtained the phone number by looking it up online. Miller depo. at 136. But Hovanec
states in her Affidavit that her father’s phone number was not listed online, and that her father’s
information was in the stored contacts on her iCloud. Hovanec Aff. ¶ 46.21
● A contact for Julissa Albanese was stored in Hovanec’s iCloud contacts. On April 14,
2017, Albanese received a Facetime call from 210-332-7331, an unrecognized number, and
when she answered she saw a bald man wearing glasses sitting next to a young girl. The call
lasted 35 seconds. Albanese received two additional calls that were hang ups. Because the calls
alarmed her, Albanese used a reverse look-up app installed on her phone and it came back as
Traci Miller. Albanese recognized Miller’s name and immediately contacted Hovanec because
she was concerned as to how Miller had her number and why this man was Facetiming her.
After describing the man and child, Hovanec concluded it was Jason Miller, Traci Miller’s
husband. Albanese provided the screen shot of the calls and the reverse look-up to Hovanec.
Hovanec contends that Jason Miller accidentally Facetimed Albanese using Traci Miller’s

20

Although the GUIDs were different, this is merely some evidence that the two webpage views were from different
devices, which is some evidence that that the two users were different people using different devices or the same
user using different devices or, as Broderhausen asserts, simply different GUIDs assigned by the statcounter
program and thus do not necessarily reflect different devices. Thus, at this point in time, the significance of the
different GUIDs is in dispute. Although Miller asserted that the GUID information was withheld until Sauceda’s
December 2018 deposition, Hovanec has provided evidence that the GUID information and the login information
for the statcounter program was provided to Miller in discovery on July 7, 2018. Docket no. 82 Ex. N.
Miller has objected to ¶ 46 as not based on evidence and exceeding Plaintiff’s personal knowledge. But Plaintiff
could have personal knowledge of whether her father’s phone number was listed online and would know whether
it was stored in her iCloud contacts.
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device, and the only way Miller would have obtained Albanese’s contact information was
through Hovanec’s iCloud contacts.22
● On October 16, 2016, Hovanec accessed her iCloud account to look for some photos and
discovered evidence indicating that the user of [e-mail] had accessed her
iCloud account.
Thus, there is some evidence (the IP address and other information captured by statcounter)
that Miller was the creator and user of the [e-mail] account, and there is also
some evidence that the user of the [e-mail] account accessed Hovanec’s
iCloud account on May 16 and May 17, 2016 to associate the email [e-mail] with
the [e-mail] account. Further, there is some evidence that Miller had access
to contacts in Hovanec’s iCloud account, specifically Hovanec’s father and Julissa Albanese.
The motion for summary judgment based on an alleged lack of evidence that Miller was behind
[e-mail] and a lack of evidence of access to the iCloud account is denied.

22

Hovanec supports this evidence with her own Affidavit and with the Affidavit of Julissa Albanese. Miller has
objected to portions of Hovanec’s Affidavit and has objected to Albanese’s Affidavit and attachments “as an
attempt to produce documents which have not been produced during the discovery period” and on the basis that
conversations between Hovanec and Albanese are hearsay. Hovanec has personal knowledge and can testify to the
fact that Julissa Albanese’s contact information was stored in her iCloud account contact list. Hovanec Aff. ¶ 46.
Albanese has personal knowledge and can testify that she never exchanged contact information with Traci
Miller, that she received the Facetime call from a bald man with a child, that she received two additional hang-up
calls, and that she used the reverse look-up app and it displayed Traci Miller as the person with the phone number.
If Albanese testifies at trial and describes the man and child, Hovanec can testify that it sounds like Jason Miller
and the Millers’ daughter, thus avoiding any hearsay concerns. As to Miller’s assertion that none of the attachments
were produced during discovery, Hovanec asserts that the reverse look-up app screen shot was produced in
discovery on July 7, 2018 at HOV000164-165. However, it is unclear whether Albanese was ever identified as a
person with knowledge or as a potential fact witness, and thus exclusion of her testimony may be an issue under
Rule 37(c). With regard to evidence provided via Albanese’s Affidavit that Jason Miller has tried to follow
Albanese on Instagram, that is not relevant to the motion for summary judgment, and such evidence can be
addressed via a motion in limine assuming that Albanese is not excluded as a potential witness.
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III.

Spoliation

Hovanec further asserts that Miller has failed to preserve relevant evidence and that she is
therefore entitled to a spoliation remedy. Hovanec’s attorney Rick Crowe sent two letters to
Miller in May 2016 demanding that she preserve electronic evidence. Docket no. 77 Ex. K (May
17, 2016 letter); docket no. 77 Ex. L (May 23, 2016 letter). Miller admits receiving these letters
and admits that she did not take any steps to preserve electronic evidence, did not preserve her
May 2016 internet history or preserve text and email messages, and no longer has the AT&T
wireless router, computer, or cell phone from the relevant time period. Hovanec contends that
the Court should therefore apply a presumption that this evidence would have supported
Plaintiff’s claims that Miller created the [e-mail] account and accessed
Plaintiff’s iCloud account. Miller has not responded at all to Plaintiff’s spoliation request.
The Court will set the spoliation request for a hearing.
Conclusion
Miller’s Motion for Summary Judgment (docket no. 75) is DENIED. However, if
evidence is excluded pursuant to Rule 37(c), summary judgment may become appropriate as to
some claims.
The Court sets a hearing on August 14, 2019 at 10:30 a.m., the time currently scheduled
for the pretrial conference, to consider (1) whether Hovanec’s damages evidence (or any other
evidence) must be excluded from consideration pursuant to Rule 37(c)23 and (2) whether
Hovanec is entitled to a spoliation remedy. No later than July 31, the parties should provide

23

No later than July 31, should Miller seek to have the Court impose any other Rule 37(c) sanctions pursuant to
the second clause of Rule 37(c), Miller must so move.
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briefing on the applicable factors for the Rule 37(c) exclusion sanction and the spoliation remedy
(see FED. R. CIV. P. 37(e)).
The Court VACATES the current deadline for filing the Joint Pretrial Order and the trial
setting of August 19, 2019 pending resolution of the exclusion and spoliation issues.
In addition, at the hearing, the parties should be prepared to discuss whether they remain
amenable to mediation, either through a private mediator or a Magistrate Judge. See docket no.
46 (ADR report agreeing that mediation would be appropriate after discovery and that the parties
expected to confer on a mediator).
It is so ORDERED.
SIGNED this 22nd day of July, 2019.

_________________________________
XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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