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Linda Marcus, Mariann Gelenius, Frank Mazzini, Michela Viscardi v. Wayne Rogers


June 28, 2012


On appeal from Superior Court of New Jersey, Law Division, Bergen County, L-4477-08.

Per curiam.


Submitted October 31, 2011

Before Judges Parrillo, Grall and Alvarez.

Plaintiffs, Linda Marcus, Mariann Gelenius, Frank Mazzini, Michela Viscardi, Catherine Sutera and Teri Quirk, and defendant, Wayne Rogers, are all teachers in the Saddle Brook School District and members of the Saddle Brook Education Association (the association). Plaintiffs hold positions in the association: Marcus is the president, Sutera and Quirk are chairpersons, Gelenius is a former chairperson, and Mazzini and Viscardi are members of the association's executive board.

The dispute that sparked this litigation arose when Wayne distributed e-mail communications between the plaintiffs at an association meeting. He was not a party to those e-mails. Thereafter, plaintiffs filed a civil action for damages pursuant to N.J.S.A. 2A:38A-3, a provision of the Computer-Related Offense Act (CROA), N.J.S.A. 2A:38A-1 to -6, and alleging violations of N.J.S.A. 2A:156A-3 and N.J.S.A. 2A:156A-27, for which civil actions are respectively available pursuant to N.J.S.A. 2A:156A-24 and N.J.S.A. 2A:156A-32, provisions of the New Jersey Wiretapping and Electronic Surveillance Control Act (WESCA), N.J.S.A. 2A:156A-1 to -34.

On cross-motions, the judge granted Wayne summary judgment on the alleged violation of N.J.S.A. 2A:156A-3, granted plaintiffs partial summary judgment on liability on the claim under N.J.S.A. 2A:38A-3, and denied their competing motions for summary judgment on the alleged violation of N.J.S.A. 2A:156A- 27. The remaining claims were tried to a jury, which returned a verdict of no cause on both claims.

This is plaintiffs' appeal. They contend that the judge erred in denying them full summary judgment on their claims under N.J.S.A. 2A:38A-3 and N.J.S.A. 2A:156A-27. In the alternative, they argue that the judge erred in denying their motion for judgment at the close of plaintiffs' case, at the close of trial and notwithstanding the verdict. Plaintiffs also assert that the judge erred in not redacting the e-mails, allocating the burden of proof, rejecting the verdict sheet they submitted and crafting one that was too complex, providing an inadequate jury instruction and expanding the scope of the jury issues after plaintiffs rested. For the reasons set forth below, we affirm.

The dispute arose while Wayne was using one of several computers that the district makes available to teachers in a central location in the school. Although the school's policy limits use to matters related to work, the teachers customarily use them to check their personal e-mail accounts as well as messages sent through the district's system.

One morning before school started, Wayne went to the computer room to check his work e-mails and took a beverage with him. As he placed that drink between the computer he was using and the one next to it, he bumped the mouse of the adjacent computer. The resulting movement of the mouse revealed the open inbox of a Yahoo e-mail account that Wayne later learned belonged to Linda Marcus. Someone other than Wayne, presumably Marcus in the absence of any evidence to the contrary, had accessed and neglected to log out of that e-mail account.

At the time, Wayne was dissatisfied with the step of the salary scale on which he had been placed under the association's new contract with the district, and he had been dealing with Marcus and other officials of the association in order to pursue that matter by grievance. He noticed that one of the subject lines for the e-mails in Marcus's inbox read "Wayne Update" and another read "We Did it." Assuming that the e-mail with his name related to his grievance, Wayne clicked on it and then on the e-mail entitled "We Did it." Each included a chain of correspondence between Marcus and various plaintiffs in this action. Wayne read them and then printed them.

The e-mail captioned "Wayne Update" included the following chain of messages:

[from Marcus]

I had an e-mail from Wayne this morning, congratulating me on my win. Then he went on to ask what was being done about his salary. I am not answering him. He can't be trusted.

[from Viscardi]

Did you guys tell him that his salary is NOT being corrected? That he is staying where he is because he is correct? I don't understand??? I'm confused. I thought his question would be "Is Tim being moved down"

Why does he still think he has a chance of moving up? Was he not informed of this? Or does he choose not to listen??? . . . . I don't get it. [from Marcus]

I guess he chooses not to listen. I will not respond to him. He is sooooo fake. And sooooo with the Dark Side. I will never tell him "The Truth", not because he can't handle it but because he's too dumb to understand it. See you later.

The e-mail with the subject line "We Did it" included these communications:

[from Gelenius]

Cheers to you all.

I am very thrilled that things worked out once again. I am happy that we took the high road. I think the handout fiasco this morning actually worked a little backlash for the other side- people I spoke to were insulted- we are not Kindergarteners. I guess the dark side was too tired after guest appearing on Deal or No Deal last night.

It'll be important to keep our act together over the next year- as I'm sure they'll be keeping a list of what they believe to be mishandlings to use against you- so keep on your toes. You all have good character and work above board so it shouldn't be a problem- however, remember that the next voted President will seat the next NEGOTIATIONS TEAM! So we cannot waiver [sic] in our resolve to keep our union going strong! [from Viscardi] Congratulations to us all :)!!!!!! We stuck together, ran around and rallied our people and the votes prove that we are still holding it all together.

I love you all and lets enjoy the moment :) because this next school year is going to be the year where they are going to try every trick in the book. Se we need to be prepared as usual!

Although the inbox was open so as to disclose the subject line of each e-mail, Wayne admitted he had to click the mouse to display and print the messages. The district's technology officer confirmed that if the prior user had not logged out of the Yahoo account, the inbox could have been displayed as Wayne described and that he would not have needed a password or other personal code to read the e-mails. In that officer's view, clicking the message line displayed on another's e-mail account was in violation of the district's written policy prohibiting, among other things, gaining or seeking unauthorized access to the files of another and invading the privacy of others.

After printing the e-mails, Wayne took the paper copies home and prepared excerpted copies. Wayne then brought the excerpted copies to the next association meeting. At the meeting, he accused Marcus of being unwilling to meet with him and not being his friend and stated that he had proof of that. When Marcus demanded to see the proof, Wayne distributed the copies of the excerpts.

Upon reading the e-mails, some of the members vociferously expressed their unfavorable reactions, and consequently the meeting was terminated. According to Marcus, she and others filed a complaint with the Saddle Brook Police immediately after the meeting. School officials were also informed of the incident.

Thereafter, police and school officials investigated Wayne. The criminal charges were dismissed, and school administrators placed a written reprimand in Wayne's personnel file.

Initially, Wayne misrepresented the circumstances under which he acquired the e-mails, but he eventually explained how he came to view, open, print and copy them.

Plaintiffs filed their lawsuit after the criminal charges were dismissed. None of the plaintiffs have been terminated, demoted or disciplined in any way as a consequence of the e-mails. Similarly, those of the plaintiffs who subsequently ran for a position in the association, including Marcus, were reelected. Nevertheless, in their view as a consequence of this episode, their fellow teachers treated them differently, their business reputations were damaged and they suffered humiliation and a loss of privacy.


Plaintiffs do not present any argument or assert any error related to the dismissal of their claim based on violation of N.J.S.A. 2A:156A-3, which prohibits interception of wire, electronic or oral communications. Accordingly, we focus on their claim under the CROA, specifically N.J.S.A. 2A:38A-3a, and the alleged violation of N.J.S.A. 2A:156A-27, a provision of the WESCA.


In reviewing plaintiffs' claims of error in the denial of their motions for summary judgment, R. 4:46-2, judgment at the close of plaintiffs' case, R. 4:37-2(b), judgment at the close of the evidence, R. 4:40-1, and judgment notwithstanding the verdict, R. 4:40-2, this court applies the same standard as the trial court. In each instance, the motion must be denied if the evidence viewed in the light most favorable to the non-moving party leaves room for reasonable minds to differ, and granted only if the evidence viewed in that matter is so one-sided that the moving party is entitled to judgment as a matter of law. See Frugis v. Bracigliano, 177 N.J. 250, 269-70 (2003) (stating and equating the standards for summary judgment and judgment notwithstanding the verdict); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995) (stating the summary judgment standard); Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969) (stating and equating the standards for judgments at the close of plaintiffs' case, at the close of the evidence and on motion for judgment notwithstanding the verdict). Accordingly, we apply that standard in addressing plaintiffs' objections to the rulings on their various motions for judgment.

The CROA provides a civil cause of action that requires a plaintiff to establish the following elements:

A person or enterprise damaged in business or property as a result of any of the following actions . . .

a. The purposeful or knowing, and unauthorized altering, damaging, taking or destruction of any data, data base, computer program, computer software or computer equipment existing internally or externally to a computer, computer system or computer network; [N.J.S.A. 2A:38A-3 (emphasis added).]

This statute plainly requires a plaintiff to prove that he or she was "damaged in business or property."

Because of the paucity of plaintiffs' evidence tending to prove that any one of them was "damaged in business or property," plaintiffs' objections to the trial court's denial of their several motions for judgment on this claim lack sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(E). It suffices to note that there was no evidence that any plaintiff was reprimanded, demoted, lost employment or lost standing in the association. Even if one assumes that damage to "business reputation" and a "hostile" environment suffice to establish this element, the only evidence of damaged reputation was testimony about impact on personal, not professional, esteem. The jurors were free to discredit that testimony or reject it because of the inconsequential and petty nature of the complaints, especially given the undisputed evidence that plaintiffs continued in their jobs and were reelected to association positions. Accordingly, their various motions for judgment on this claim were properly denied.


We turn to consider plaintiffs' objection to the denial of their motions for judgment on the alleged violation of N.J.S.A. 2A:156A-27, a provision of the WESCA. N.J.S.A. 2A:156A-32 provides a civil cause of action for a person "aggrieved by" a violation of N.J.S.A. 2A:156A-27. Plaintiffs alleged that Wayne violated subsection a of N.J.S.A. 2A:156A-27, which provides:

A person is guilty . . . if he (1) knowingly accesses without authorization a facility through which an electronic communication service is provided or exceeds an authorization to access that facility, and (2) thereby obtains, alters, or prevents authorized access to a wire or [an] electronic communication while that communication is in electronic storage. [(Emphasis added).]

Since there is no question that Wayne obtained an electronic communication that was in electronic storage at the time, it is only the first clause that is in issue. The first clause - more accurately, the first element of this cause of action - plainly requires that the prohibited act be done "knowingly" whether the prohibited act done is one through which the actor "accesses without authorization" or one through which the actor "exceeds an authorization to access." The terms of the clause and its punctuation do not suggest that "knowingly" applies to unauthorized access but not to exceeding authorized access. N.J.S.A. 2A:156A-27.

The purpose and history of the statute also suggest the Legislature intended to sanction only those who knowingly exceed authorization. N.J.S.A. 2A:156A-27 was adopted in 1993 to address changes in federal laws governing electronic communications. It is closely modeled on 18 U.S.C.S. § 2701(a), which requires proof of "intentionally access[ing] without authorization" or "intentionally exceed[ing] authorization." Ibid.; see Assembly Judiciary, Law And Public Safety Committee Statement to A. 130 and 1587 (Sept. 21, 1992) (discussing the federal law). The purpose of the federal law is to prohibit unauthorized access, or access exceeding authorization, to stored electronic communications in the nature of attacks, such as hacking and interruption of service. See Int'l Assoc. of Machinists and Aerospace Workers v. Werner-Matsuda, 390 F. Supp. 2d 479, 495 (D. Md. 2005) (and cases cited therein); State v. Riley, 412 N.J. Super. 162, 179-80 (Law Div. 2009) (discussing the development of statutory law on computer crimes and related civil actions). This purpose favors an interpretation of the statute that limits its reach to those who know they are acting without authorization or consent. State v. White, 344 N.J. Super. 211, 221 (Ch. Div. 2001) (relying on federal cases to conclude that the "without authorization" element of N.J.S.A. 2A:156A-27 means use of another's password or access code without permission or consent); see also Riley, supra, 412 N.J. Super. at 180-81 (relying on judicial interpretations of N.J.S.A. 2A:156A-27 and concluding that the unauthorized access addressed by the CROA is limited to access acquired by circumventing a password or personal code or using another's password or code).

Because the index to the inbox of Marcus's Yahoo e-mail was displayed on the screen when the last user left the computer, Wayne did not access the facility without authorization. The accessing of the facility on which Marcus's e-mail was stored and the display of its index had been accomplished by the last user of the computer, which we must presume was Marcus because there is no evidence of hacking or misuse of her password. Consequently, to prevail on this claim, plaintiffs had to establish that Wayne knowingly exceeded his authorization, as a viewer of the retrieved and displayed index, to click on and pull from electronic storage the content of the e-mails.

In order to conclude that the trial court erred in denying any one of plaintiffs' several motions for judgment, we would have to determine, as a matter of law, that a jury could not have found that Wayne did not know he was exceeding the authorization that was implied by the fact that the index was displayed and the contents of the various e-mails accessible without use of a password or code. We cannot reach that conclusion.

As a general rule, the question of whether an action was done with a specified, subjective state of mind is a question a jury must resolve unless undisputed facts admit only one conclusion. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 447 (2007). There are exceptions where the nature of the conduct itself so unmistakably establishes the intent as to eliminate a question for the jury. Ibid.; see, e.g., Cardinal Health 414, Inc. v. Adams, 582 F. Supp. 2d 967, 977 (M.D. Tenn. 2008) (noting that plaintiff was entitled to judgment as a matter of law on a federal claim where the undisputed evidence was that the defendant "repeatedly, intentionally, and knowingly logged onto the e-mail account" of another, using that user's name and password where "the log-on page had a banner ad that stated that the materials therein were for . . . employees only, and [defendant] certainly knew he was no longer a[n] employee").*fn1

This is not such a case. Because plaintiffs moved for judgment at various stages of the proceeding, the question for this court is whether the undisputed facts precluded a finding that Wayne, the non-moving party, knew Marcus had not consented to - stated differently, had not impliedly or tacitly authorized - access to the contents of the e-mails that she left accessible to all by failing to close her inbox and log off her account. In such a circumstance, there was a question for the jury. See Borchers v. Franciscan Tertiary Province of the Sacred Heart, Inc., 962 N.E.2d 29, 41 (Ill. App. Ct. 2012) (discussing the circumstantial evidence relevant to intent that precluded summary judgment in favor of defendant on the question of intent in a case involving an alleged violation of the federal law statute protecting stored communications).

In fact, the judge in this case submitted questions to the jurors that were carefully crafted to ascertain whether Wayne knew he lacked authorization or knew he exceeded his authorization. Their answers demonstrate that they found he did not know. All seven of the deliberating jurors found that he "knowingly accessed" the facility providing the service and that he obtained an electronic communication in electronic storage, but six of the seven found that he had not "exceeded an authorization to access that facility," and seven found that Wayne had "tacit authorization" to do so. Viewed in the light most favorable to Wayne, the evidence as it stood at every pertinent stage of the proceedings, from the first motion for summary judgment to verdict, does not permit us to conclude that the plaintiffs were entitled to judgment as a matter of law.


We have considered plaintiffs' objections to the judge's evidentiary rulings, the jury instruction and the verdict sheet. After reviewing the record in light of those contentions, we conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We simply note that plaintiffs' claim that the court erred by requiring them to prove that Wayne lacked authorization is in conflict with N.J.S.A. 2A:156A-27, which makes lack of authorization an element of plaintiffs' claim. Plaintiffs rely on Blumofe v. Pharmatrak, Inc., 329 F.3d 9, 18-19 (1st Cir. 2003), but that case involves allocation of the burden of proof on a statutory exception to liability under 18 U.S.C.S § 2511(1)(a) for interception of a communication, which exception applies when one party to the communication has given prior consent to the interception. See 18 U.S.C.S. § 2511(2)(d). The federal counterpart of N.J.S.A. 2A:156A-27 is 18 U.S.C.S. § 2701(a), not 18 U.S.C.S. § 2511. Consent under the interception statute is an exception. In contrast, absence of authorization is an element of the cause of action at issue here. Thus, Blumofe has no relevance.


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