## Facts

- Barry and Paula Epstein married in 1970; Paula filed for divorce in Illinois state court in 2011, alleging Barry’s infidelity.
- In divorce discovery, Barry served a document request seeking all materials supporting Paula’s infidelity allegation.
- Paula, through her divorce attorney Jay Frank, produced copies of emails between Barry and other women that appeared to have been forwarded from Barry’s accounts to Paula.
- Barry alleged Paula secretly installed an auto-forwarding rule on his email accounts that automatically forwarded messages to her.
- Barry sued Paula and Frank in federal court under the Wiretap Act (ECPA), seeking civil remedies for (1) Paula’s alleged interception of his emails and (2) Frank’s alleged unlawful disclosure by producing the emails in discovery.
- The district court dismissed both claims under Rule 12(b)(6) for failure to state a claim.

## Issues

1. Whether allegations that a spouse used an auto-forwarding rule on an email account plausibly allege an “intercept[ion]” requiring contemporaneous acquisition under the Wiretap Act.
2. Whether an opposing attorney can be liable under the Wiretap Act for producing a party’s own emails to that party in response to that party’s discovery request.

## Decision

- Affirmed in part, reversed in part, and remanded.
- Reversed dismissal of the Wiretap Act claim against Paula because the complaint plausibly alleged contemporaneous interception and the attached emails did not conclusively negate that allegation at the pleading stage.
- Affirmed dismissal of the Wiretap Act claim against Frank because producing Barry’s emails to Barry in response to Barry’s own discovery request could not support disclosure liability under the Act.

## Legal Principles

- A Wiretap Act “intercept” of an electronic communication requires acquisition contemporaneous with transmission, not mere access to stored communications.
- On a Rule 12(b)(6) motion, factual allegations are taken as true and reasonable inferences drawn in the plaintiff’s favor; attachments defeat allegations only when they unambiguously contradict them.
- An attorney does not violate the Wiretap Act by disclosing a litigant’s own emails to that litigant when responding to that litigant’s discovery request in ongoing litigation.

## Conclusion

The Seventh Circuit held that allegations of email auto-forwarding were sufficient at the pleading stage to proceed on a Wiretap Act interception claim against the spouse, but the spouse’s attorney could not be liable for disclosure based solely on producing the emails to the requesting party in discovery.


Epstein v. Epstein, 843 F.3d 1147 (7th Cir. 2016)