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Rozell v. Ross-Holst

January 20, 2006


The opinion of the court was delivered by: James C. Francis IV United States Magistrate Judge


This case presents the question of whether, when a plaintiff claims that a defendant has improperly accessed her e-mail account, every communication transmitted through that account becomes subject to discovery. The plaintiff, Mary Rozell, has asserted claims of: (1) sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the New York State Human Rights Law, N.Y. Exec. Law § 296, and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101; (2) violation of the Electronic Communications Privacy Act, 18 U.S.C. § 2701*fn1 ; and (3) computer trespassing in violation of New York Penal Law § 156.10. The defendants now move pursuant to Rule 37 of the Federal Rules of Civil Procedure to compel production of e-mails sent through the plaintiff's account. For the reasons discussed below, the defendants' motion is granted in part and denied in part.


Mary Rozell was formerly an employee of defendant ANDCO, LLC ("ANDCO").*fn2 She contends that defendant Neil Pirozzi, her supervisor and the Chief Financial Officer of ANDCO, made unwelcome sexual comments to her and touched her provocatively against her will. The plaintiff alleges that when she complained to defendant Courtney Ross-Holst, the principal of ANDCO, Mr. Pirozzi retaliated and ultimately terminated her. Then, after her counsel complained to the defendants by letter, Mr. Pirozzi purportedly "hacked" into Ms. Rozell's electronic mail account and forwarded to himself approximately 400 of her e-mails.

Ms. Rozell originally opened her e-mail account with America On-Line, the internet service provider commonly known as "AOL," in 1999, before she was hired by ANDCO. (Letter of Mark R. Humowiecki dated Dec. 20, 2005 ("Humowiecki Letter"), at 2; Compl., ¶ 19). Sometime after she began her employment with the defendants, ANDCO began paying the cost of Ms. Rozell's AOL account, apparently because it served as a back-up for work-related communications when ANDCO's own e-mail system was not working. (Letter of A. Michael Weber dated Dec. 19, 2005 ("Weber Letter"), Exh. A; Humowiecki Letter, Exh. 8).

In Defendants' First Request for Production of Documents, ("Def. Doc. Req.", excerpt attached as Exh. D to Weber Letter), the defendants demanded disclosure of "[a]ll emails sent to or from the account during the time period Defendants paid for that account." (Def. Doc. Req., Request No. 47). The plaintiff objected "on grounds of [p]rivilege, [s]cope, [r]elevance,

[d]uplication, [c]ustody, and [h]arassment," but also represented that she was in the process of producing all of the responsive documents, subject to her objections. (Plaintiff's Responses to Defendants' First Request for Production of Documents, Request 47, attached as Exh. E to Weber Letter).

After negotiations failed to resolve the dispute, the defendants brought the instant motion. Originally, the defendants contended, in part, that they were entitled to the requested documents because ANDCO owned the e-mail account by virtue of having paid the subscription fee during the relevant period. (Letter of Elena Paraskevas-Thadani dated June 15, 2005, included as part of Exh. 1 to Humowiecki Letter). However, the defendants object to my determining the ownership of the account on the ground that this is a dispositive issue that should not be decided in the context of a discovery motion. (Weber Letter at 2 n.2). I construe this as a decision by the defendants to withdraw that aspect of their argument for purposes of the current motion and will therefore disregard it.

Regardless of the ownership of the account, the defendants argue that they are entitled to every e-mail transmitted to or from Ms. Rozell's AOL account during the period the defendants paid for the account because they are relevant to the plaintiff's computer hacking claims, her sexual harassment claims, and her claims of resulting physical and emotional distress. (Weber Letter at 4-7). They contend that, at the least, the e-mails should be reviewed by the Court in camera, since "an interested party to a litigation cannot be the final arbiter of relevance" and cannot "withhold documents from discovery ab initio based on his or her unilateral, unreviewed determination." (Weber Letter at 7-8). The defendants note that they are not seeking privileged documents, which need not be produced as long as they are properly identified on a privilege log. (Weber Letter at 8). Finally, they contend that to the extent any of the requested e-mails are personal in nature, the plaintiff's legitimate privacy concerns can be addressed with a confidentiality order. (Weber Letter at 8).

Plaintiff's counsel dispute the defendants' claims of relevance, noting that Ms. Rozell has already produced: all emails that are: 1) to or from a current or former Andco employee, 2) related or potentially related to her employment with Defendants, 3) related or potentially related to her allegations of sexual harassment, 4) related or potentially related to her termination, 5) related or potentially related to her efforts to find employment, 6) related or potentially related to her emotional distress as a result of Defendants' actions, or 7) were responsive to any of Defendants' document requests. (Humowiecki Letter at 3). Further, the plaintiff rejects the defendants' contention that there is any basis for review of the e-mails by the Court or any third party. (Humowiecki Letter at 3).


A. Relevance

In the context of discovery, relevance is an extremely broad concept. See Convolve, Inc. v. Compaq Computer Corp., 223 F.R.D. 162, 167 (S.D.N.Y. 2004); Melendez v. Greiner, No. 01 Civ. 7888, 2003 WL 22434101, at *1 (S.D.N.Y. Oct. 23, 2003); Zanowic v. Reno, No. 97 Civ. 5292, 2000 WL 1376251, at *2 (S.D.N.Y. Sept. 25, 2000). "Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party[.]" Fed. R. Civ. P. 26(b)(1). Furthermore, "[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Id. Moreover, ...

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