Expert Testimony Not Necessary to Prove Existence of Office’s E-Mail Storage, Holds Ninth Circuit

In Clare v. Clare, No. 19-36039 (9th Cir. Dec. 8, 2020), a case concerning a husband’s intrusion into his wife’s work e-mail, the Ninth Circuit reverses exclusion of a declaration about how the office stored data.

Andrea Clare sued Kevin Clare under the federal Stored Communications Act (SCA) 18 U.S.C. § 2701 et seq., for breaking into her iPhone and work server. “Andrea told Kevin to stop looking at her messages and attempted to block his access by changing her iPhone passcode. The phone could be accessed only with Andrea’s thumbprint or with the new passcode, which Andrea did not share with Kevin. One night while Andrea slept, Kevin used her thumbprint to unlock her phone, accessed her work email through Microsoft Exchange, and forwarded approximately ten e-mails to himself.”

Kevin moved for summary judgment, arguing that there was no proof that the e-mails he accessed were in the office’s backup storage within the meaning of the SCA. “Andrea submitted the declaration of Dan Morgan, an employee of the Information Technology (IT) company that provided data protection services to her law firm. Asked to investigate whether there had been unauthorized access into Andrea’s Microsoft Exchange law firm account, Morgan concluded that an Apple device other than Andrea’s cell phone or home computer logged in using her credentials in both 2017 and 2018. Morgan also described the private server that he and his company maintained for backup storage of the firm’s emails.”

The district court excluded Morgan’s declaration. Although the declarant supplied a foundation of personal knowledge for admissibility under Fed. R. Evid. 602, the court struck the evidence because “it did not describe his expert qualifications or how he reached his conclusions on unauthorized access” for admissibility as expert testimony under Fed. R. Evid. 702. Absent evidence of Kevin’s incursion into the work e-mail storage, the district court granted summary judgment.

The Ninth Circuit reverses the evidentiary ruling and summary judgment. “[I]t was an abuse of discretion to disregard Morgan’s personal knowledge about Andrea’s email storage …. [This evidence] does not require expert qualification. As a result of his employment with the IT company that services Andrea’s law firm, Morgan is aware of the private server his company maintains for storage of the law firm’s e-mails and other materials. The information he provides in paragraphs five and six is far from technical. Instead, Morgan offers lay witness evidence. A plumber may not be qualified to describe the inner workings of a garbage disposal but can certainly observe the presence of such a unit in a particular customer’s sink. Here, Morgan’s description of the existence of a backup drive on the law firm’s computer system creates a genuine dispute of material fact on the narrow issue that formed the basis of the district court’s summary judgment ruling.”

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