Litigation Watch – the Fourth Circuit Whacks a Hack Posted By Daniel Kaiser, Esq. on August 25, 2009
Earlier this spring, the United States Court of Appeals for the Fourth Circuit took a notable stand to strengthen the Stored Communications Act (SCA).
In Van Alstyne v. Electronic Scriptorium[1] the court broke new ground in SCA litigation by ruling that a civil litigant may be awarded attorney’s fees and punitive damages even in the absence of any proof of actual 
damages, although statutory damages will be withheld. In this case the court found that for more than a year a former employer had repeatedly accessed his former employee’s personal email account (as opposed to a company account with privacy waivers) – thus violating her personal privacy.
The operative SCA subsection reads as follows:
(c) Damages.— The court may assess as damages in a civil action under this section the sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation, but in no case shall a person entitled to recover receive less than the sum of $1,000. If the violation is willful or intentional, the court may assess punitive damages. In the case of a successful action to enforce liability under this section, the court may assess the costs of the action, together with reasonable attorney fees determined by the court.[2]
The court noted that the SCA’s provision for punitive damages and attorney’s fees, found in the second and third sentence of this subsection, lacks the limiting language “actual damages suffered” that can be seen in the SCA’s provision for statutory damages, found in the first sentence of this subsection.
Interestingly, this is a case in which the former employee had initiated employment claims against her former employer, and it seems that the former employer wanted to conduct his own unofficial, hacker-style eDiscovery. Although one would think it goes without saying, eDiscovery is discovery; rules do apply!
[1] 560 F.3d 199 (4th Cir. 2009).
[2] The Stored Communications Act 18 U.S.C. § 2707(c) (1986).
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