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Potter v. Havlicek

February 14, 2007

CHRISTINA M. POTTER, PLAINTIFFS,
v.
JEFFERY D. HAVLICEK, DEFENDANT.



The opinion of the court was delivered by: Judge Thomas M. Rose

ENTRY AND ORDER DENYING PLAINTIFF'S DEMAND FOR A PRELIMINARY INJUNCTION. (DOC. 16).

Pending before the Court is a motion requesting an injunction forbidding Defendant Jeffery Havlicek from "any use, disclosure, copying, dissemination or destruction of electronic communications, electronic files, data recordings, audio recordings, video recordings, and any other documents, objects, information, or data, in his possession or control which contain or relate to any statements, communications, writings, thoughts, images, sounds, ideas or personal information of Plaintiff Christina Potter." Doc. 16, at 1. Defendant has responded to the motion. Doc. 18. Plaintiff has replied, doc. 19, rendering the motion ripe.

The case is tangentially related to the divorce of Defendant Jeffery Havlicek from his wife, Amy Havlicek. According to Plaintiff Christina Potter's affidavit, Plaintiff came to know Amy Havlicek sometime around December of 2004. Potter began exchanging emails and instant messages with Amy Havlicek almost a year later, several months before Amy Havlicek moved out of her home with Defendant Jeffery Havlicek in December 2005. Christina Potter and Amy Havlicek maintained these communications for several months thereafter.

Some time later, Potter learned that Jeffery Havlicek procured copies of Potter's electronic communications with Amy Havlicek. She learned this when Amy Havlicek's legal counsel showed her copies of them in March 2006. Potter affies that Jeffery Havlicek had neither her nor Amy Havlicek's permission to access the communications.*fn1 Amy Havlicek further claims that her legal counsel advised her that Jeffery Havlicek and his legal counsel had made statements reflecting knowledge of Potter's bank accounts and certain financial transactions. From this information, Potter concludes that Jeffery Havlicek accessed Potter's email accounts by secretly obtaining her password without permission. Potter also claims that Jeffery Havlicek viewed copies of her electronic communications directly from her communications service providers, Yahoo and AOL. Potter further claims that Jeffery Havlicek used the contents of the electronic communications thus acquired by providing them to a "custody evaluator" appointed by the Court, as well as others, including his legal counsel, but also neighbors, friends and business associates with the intent to harass, annoy and inflict emotional injury on Potter.

Matters regarding discovery also appear to require the Court's attention, as Potter's counsel affies that Defendant has refused to identify, disclose, and/or produce the electronic files, records, recordings, communications, and/or the computers containing the electronic communications or other evidence relevant to this matter. Doc. 16, at 1. Jeffery Havlicek apparently has some idea what documents would be responsive to such a request, as he informed the Common Pleas Court of Greene County Ohio, Division of Domestic Relations, "that he has legally obtained access to electronic evidence and documents which he intends to submit to th[e] Court." Doc. 16, at 10. This statement was made in a filing responsive to a motion by Amy Havlicek to preclude use of these documents in their divorce proceedings in the Greene County Court of Common Pleas.

Potter further directs the Court's attention to other allegations in Jeffery Havlicek's affidavit filed in state court to provide a factual basis for her motion. According to Havlicek, "[t]he electronic evidence/documents was obtained by various means including, but not limited to video recording; collection of election files and cookies from a computer owned by affiant and defendant; computer activity monitoring software installed on affiant's and defendant's computer that tracks computer usage including keyboard strokes, display screens, and website logs; [and] access of electronic mail through stored "remember me" password-saved accounts." Doc. 16, at 10.

In his affidavit, Jeffery Havlicek describes the computer as being available to the couple's teenage children and to house guests. Doc. 16, at 11, 12. Jeffery Havlicek asserts that he never installed any hardware to intercept any messages, but rather installed surveillance software on the computer. Havlicek describes the software as collecting keyboard typing and screen shots and requests for access to websites. He claims that the keystroke software collects its information not from the modem but directly from the keyboard. He writes, "The screen shot logging feature is similar to hitting the 'print-screen' button on most keyboards. It saves an image of what appeared on the monitor. Since the file is collected from the original computer, the file is again internal to a single computer and no transmission is required. The same effect may be produced by training a video camcorder on the monitoring screen in the privacy of one's own home. Further, the list of requested websites collected by the software is similar to history records automatically recorded in cookies saved by web browser software." Doc. 16, at 12.

Jeffery Havlicek further states that he obtained other emails "by accessing e-mail accounts from web browsers where [Amy Havlicek] had selected the 'remember me' feature on [the] home computer." Id. He describes these as "just more readable duplicates of the same electronic evidence collected in keyboard logs and screen captures." Id. He adds: the e-mails collected using the 'remember me' settings were collected at a time when [Amy Havlicek] knew [he] was using the.computer; knew that [he] had access to the computer, and knew that [he] was seeking [her] personal information from the.computer. Knowing this, [she] still chose to leave 'remember me' features on so that anyone could start the computer and go to [her] e-mail accounts and read her email without a password or monitoring software.

Doc. 16, at 12.

Jeffery Havlicek further claims to have "never accessed a computer belonging to Christina Potter and has never been inside Ms. Potter's household." Doc. 16, at 13. Havlicek claims that these intercepted communications are relevant to issues including "allocation of parental rights and responsibilities; division of assets and liabilities; spousal support and attorney fees." Doc. 16, at 13. Finally, he informed the Greene County Court of Common Pleas that, if the divorce proceeds to trial, he intends to submit to it "approximately 80 keyboard and website log files in *.html format and a similar number in an alternative *.csv format; over 2000 individually time and date stamped automated screen captures in *.jpg format; approximately six video tapes in DV tape format; approximately six audio tapes in mini-audio tape format; numerous files produced from defendant correspondence while in the marital household mostly in *.bmp, *.gif, or *.jpg formats; approximately 24 electronic documents from diaries, love letters, etc..., in *.pdf, *.doc types of formats mostly taken directly off the Dell hard drive."

Christina Potter filed an action in this Court on July 13, 2006. Potter's Amended Complaint, Doc. 15, filed with this Court December 4, 2006, asserts that these actions violate Title I of the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510 -2522 (the "ECPA"), Title II of the ECPA, the Stored Communications Act, 18 U.S.C. §§ 2701 -2712, Ohio Revised Code § 2933.51, et seq., as well as invasion of privacy, and intentional infliction of emotional distress. Section 2520 of Title 18 of the United States Code allows for actual damages, or statutory damages of $10,000 per violation or $100 per day of the violation, whichever is greater. 18 U.S.C. § 2520(c)(2) (2007). Title II of the ECPA authorizes an award 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.less than the sum of $1000."

18 U.S.C. § 2707(c).

Potter's motion for preliminary injunction, filed the same day as her amended complaint, demands that the Court enjoin Jeffery Havlicek from any use, disclosure, copying, dissemination or destruction of electronic communications, electronic files, data recordings, audio recordings, video recordings, and any other documents, objects, information, or data, in his possession or control which contain or relate to any statements, communications, writings, thoughts, images, sounds, ideas or personal information of Plaintiff Christina Potter." Doc. 16, at 1.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 65 permits a party to a suit to seek injunctive relief if he believes he will suffer irreparable harm or injury while the suit is pending. In determining whether a grant of a temporary restraining order or a preliminary injunction is appropriate, the Court should consider: (1) the likelihood that the requesting party will succeed on the merits of the action; (2) whether the party requesting the relief will suffer irreparable harm without the grant of relief; (3) the likelihood or extent that granting the injunction will cause substantial harm to others; and (4) the degree to which granting the injunction will advance the public interest. See, e.g., Deja Vu of Nashville, Inc. v. Metropolitan Gov't of Nashville and Davidson County, 274 F.3d 377, 400 (6th Cir. 2001); Wonderland Shopping Ctr. Venture Ltd. P'ship v. CDC Mortg. Capital, Inc., 274 F.3d 1085, 1097 (6th Cir. 2001); McPherson v. Michigan High Sch. Athletic Ass'n, Inc., 119 F.3d 453, 459 (6th Cir. 1997) (en banc); Washington v. Reno, 35 F.3d 1093, 1099 (6th Cir. 1994). These four different considerations are not required elements of a conjunctive test but are rather factors to be balanced. Washington, 35 F.3d at 1099. In any case, "[t]he complaint or motion of the party seeking such relief must identify specific facts and reasons demonstrating the existence and extent of the immediate injury and why it is irreparable." City of Parma, Ohio v. Levi, 536 F.2d 133, 135 (6th Cir. 1976).

A hearing is not always necessary on a motion for a preliminary injunction. Bradley v. Pittsburgh Bd. of Educ., 910 F.2d 1172 (3rd Cir. 1990). According to Wright & Miller: preliminary injunctions are denied without a hearing, despite a request therefor by the movant, when the written evidence shows the lack of a right to relief so clearly that receiving further evidence would be manifestly pointless. This practice is supported by Rule 78, which provides that "the court may make provision by rule or order for the submission and determination of motions without oral hearing * * *," and by the fact that Rule 65 does not explicitly require an oral hearing on a preliminary injunction motion. 11A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, § 2949.

III. Analysis

Plaintiff's motion for preliminary injunction only develops 18 U.S.C. § 2511 as a basis for granting her motion. For this reason, the Court will likewise confine itself to an analysis of this federal claim in determining the merits of the motion.

A. The Likelihood of Success on the Merits

Title 18 U.S.C. § 2511, provides:

§ 2511. Interception and disclosure of wire, oral, or electronic communications prohibited

(1) Except as otherwise specifically provided in this chapter any person who--

(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept...any wire, oral, or ...


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