When Paula Epstein filed for divorce in 2011, she told the Cook County Circuit Court that Barry, her husband of 41 years, was a serial philanderer.
Bruce’s request for proof led Paula to reveal that for at least five years she had been intercepting her husband’s email via an autoforwarding rule.
Paula produced incriminating emails Barry had exchanged with various women, and Barry in turn accused Paula and her attorney of violating the federal Wiretapping and Electronic Surveillance Act.
Though the Northern District of Illinois dismissed Barry’s lawsuit, the Chicago-based Seventh Circuit issued a partial reversal on Dec. 14.
Barry’s allegations hinge, according to the ruling, on “whether the Wiretap Act requires a ‘contemporaneous’ interception of an electronic communication — that is, an interception that occurs during transmission rather than after the electronic message has ‘come to rest on a computer system.’” (Italics in original.)
“Even if the Wiretap Act covers only contemporaneous interceptions, Barry has stated a Wiretap Act claim against Paula, and dismissal of the claim against her was error,” U.S. Circuit Judge Diane Sykes wrote for a three-person panel.
Sykes noted that “Congress probably didn’t anticipate its use as a tactical weapon in a divorce proceeding.”
In a concurring opinion, U.S. Circuit Judge Richard Posner questioned the usefulness of allowing litigants to use the wiretapping law as a means of concealing misconduct.
“I don’t understand why law should promote dishonesty and deception by protecting an undeserved, a rightly tarnished, reputation,” Posner wrote.
Posner also found it relevant that adultery is illegal in Illinois, where the Epsteins are divorcing.
“We might compare Mrs. Epstein to a bounty hunter — a private person who promotes a governmental interest,” he wrote. “She has uncovered criminal conduct hurtful to herself, and deserves compensation, such as a more generous settlement in her divorce proceeding.”
The Seventh Circuit was unanimous that Barry does not have a case against Paula’s attorney.
“The lawyer can’t be liable for disclosing Barry’s own emails to him in response to his own discovery request,” Sykes wrote (emphasis in original).
Not only did Barry know the contents of the intercepted emails, indeed he “invited their disclosure by requesting them in discovery in the divorce action,” the decision states.
“The Wiretap Act doesn’t prohibit the interception of electronic communications with consent,” Sykes added.