Epstein v. Defendant Attorney

Synopsis:

Karen Kies DeGrand and Norman Barry successfully defended a client on appeal in the Seventh Circuit.

The firm’s client, a divorce attorney, was sued with his client in federal court by the client’s estranged husband in the midst of an acrimonious divorce proceeding pending in an Illinois circuit court. Suing both his wife and her attorney, the husband alleged violations of the federal Wiretapping and Electronic Surveillance Act based on claims that the wife intercepted the husband’s emails to support her contention in the divorce action that the husband was unfaithful.

In discovery in the divorce case, the husband served a document request seeking the production of all documents related to the infidelity accusation. The attorney produced copies of emails between the husband and other women. The husband then filed the federal lawsuit claiming that the wife violated the Wiretap Act by allegedly planting a device on the husband’s email accounts that automatically forwarded his emails to the wife. The husband also claimed that the wife’s attorney violated the Act by “disclosing” and “using” the emails in the divorce action.

The Seventh Circuit affirmed the dismissal of the case against DBMS’ client. The panel found that no “disclosure” occurred when the attorney simply responded to the husband’s discovery request. In addition, the Seventh Circuit agreed that the husband failed to sufficiently allege “use” that violated the statute. He alleged only that the attorney intended to use the emails in the divorce case; the court of appeals held that inchoate intent is not prohibited.

Practice