Years ago, there was a conference attended by state and federal court leaders, convened by Chief Justice William Rehnquist. Among the topics presented was a plea from federal judges to figure out how to send diversity cases to state courts. “These are, after all, essential state claims,” the proponents argued. And so I made a joke: “I think it is a great idea! We in the state courts can take your diversity cases and you take the divorces.” The Chief Justice of a Midwestern state very much appreciated my humor, but few if any of the federal judges appreciated it.
And so we now move to the decision this week by the Seventh Circuit Court of Appeals. Barry Epstein sued his estranged wife, Paula, alleging that she violated the federal Wiretapping and Electronic Surveillance Act by intercepting his emails. Mr. Epstein’s lawsuit arose from the couple’s acrimonious divorce. Paula accused Barry of serial infidelity, so in discovery Barry asked her for all documents related to that accusation. Paula and her lawyer, Jay Frank, complied and produced copies of incriminating email correspondence between Barry and several women. According to the Seventh Circuit opinion:
On the face of it, the messages seem to have been forwarded from Barry’s email accounts to Paula’s. This came as a shock to Barry; he inferred from this discovery response that Paula must have secretly placed a “rule” on his email accounts automatically forwarding his messages to her. With the divorce action still ongoing, Barry filed this federal suit against Paula and Frank pursuant to 18 U.S.C.§ 2520,which authorizes civil actions against persons who violate the Wiretap Act. The complaint alleges that Paula unlawfully intercepted, disclosed, and used Barry’s emails in violation of the Act, and that Frank violated the Act by unlawfully disclosing and using the emails in the divorce proceeding. Copies of some of the intercepted emails were attached to the complaint as exhibits.
Apparently fearing that this was the beginning of Judge Kevin Burke’s attempt to move all divorce cases from state court to federal court in exchange for the diversity cases, the Federal District Court dismissed the case. This week, a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit — in an opinion written by Circuit Judge Diane S. Sykes — reinstated Barry’s Wiretap Act claim against his estranged wife.
While the opinion may strike fear in the hearts of family court lawyers, there is some solace: the Court of Appeals affirmed the dismissal of the claim against Paul’s family court lawyer, Jay Frank. Oh yes, it appears that Paula and Barry are still litigating their divorce in Cook County’s court.