The opinion of the court was delivered by: Magistrate Judge Carter
Plaintiff Roy Klumb brought this action alleging defendant Crystal Goan, formerly his wife, violated the federal Wiretap Act, 18 U.S.C. § 2510 et seq., and the Tennessee Wiretap Act, Tenn. Code Ann. § 39-13-601 et seq., by installing spyware on his computers without his consent to intercept his incoming email. A bench trial was held and, having heard all the evidence, the Court concludes that defendant Crystal Goan did violate the two wiretap statutes, that the plaintiff is entitled to the statutory damages of $10,000, and that defendant's violation of the wiretap acts was part of a larger scheme to gain advantage of the plaintiff during their divorce thereby warranting punitive damages in the amount of $10,000. The plaintiff is also entitled to reasonable attorney's fees and costs. An appropriate judgment shall be entered.
As written, the federal and Tennessee wiretap acts can encompass those situations where spouses resort to computer espionage as weapons of domestic warfare when their marriage sours. It is not clear whether Congress and the Tennessee legislature envisioned their respective statutes being used in such a manner, but case law indicates such actions are not uncommon. This case, however, is not a garden variety case of one spouse putting spyware on the other spouse's computer to electronically eavesdrop. Plaintiff alleges defendant engaged in an elaborate, deceptive scheme which involved wiretapping his computer to intercept emails, altering those emails to make it appear he was having an affair, and altering legal documents in order to provide that if plaintiff did have an affair, defendant would receive more money in a divorce. Because of the elaborate nature of the allegations and because the plaintiff seeks punitive damages, the Court has been required to focus a wide lens on the parties' conduct and consider behavior beyond simply wiretapping. The result is the regrettable and unavoidable airing of dirty laundry.
1. The Parties' Relationship
Roy Klumb met Crystal Goan in the summer of 2003, between Crystal's first and second years of law school at the University of Memphis, when she was hired for office work at the Greeneville, Tennessee office of Klumb Lumber Company (KLC). KLC is a third generation family business based in Mississippi, founded by Roy's grandfather, and presently headed by Roy's father. Roy Klumb was overseeing the operation of the KLC Greeneville office, spending about half his time in Greeneville, Tennessee and half his time in Mississippi. Roy, who owns stock in KLC and has a significant interest in a business partnership with his two siblings, is a wealthy man. Roy has a son and a daughter from a previous marriage who lived with their mother in Mississippi.
Roy and Crystal began dating in the summer of 2004 when Crystal, who is from Greeneville, returned home again from law school. Roy and Crystal continued to date when she returned to the University of Memphis for her final year of law school. The relationship appears to have been fraught with concerns of fidelity from the very beginning. Roy was overly possessive, frequently calling Crystal to ask where she was and what she was doing. Crystal, who knew Roy's first marriage had ended, at least in part, due to infidelity, was fearful that his previous dating relationships had not ended. After defendant graduated from law school in May 2005, she returned to Greeneville and began working at a law firm. The parties continued dating. Roy was generous to Crystal with KLC resources. He allowed her to use the computers and fax machine in the KLC office and a company gas card, and company cars.
Unfortunately, plaintiff's and defendant's relationship both before and after their marriage was severely strained. Roy often drank excessively. In one incident in Memphis, prior to Crystal's and Roy's marriage, he drank too much and was thrown out of a restaurant for throwing peanuts at the waitress. That same evening in their hotel room, Crystal ended up with a black eye. On their honeymoon, he drank too much and became verbally abusive. In another incident after their marriage, Roy became so inebriated he passed out in their home and lost control of his bodily functions. Crystal had to call a friend to help clean him up and put him to bed. Crystal, on the other hand, worried obsessively about whether Roy was being faithful.
2. Execution of the Prenuptial Agreement
In December of 2005, Roy and Crystal became engaged. Roy discussed a prenuptial agreement with Crystal. Most of Roy's assets were in the family business, KLC, and in the partnership with his siblings, and he wanted to protect those assets in the event the marriage failed. He agreed to allow Crystal to draft the prenuptial agreement. According to Roy, on April 24, 2006, five days before Crystal's and Roy's marriage on April 29, 2006, defendant came to the KLC office with two copies of a prenuptial agreement. They sat at his sales desk in a large, central sales office and reviewed one of the copies line by line. He found the agreement satisfactory, initialed each page, and then signed it. Defendant then handed him the second copy which he initialed and signed as well. Since he believed the second prenuptial agreement to be an exact replica of the first, he did not read it line by line. He took the first prenuptial agreement, and, when he returned to the KLC office in Mississippi, he stored it in a lock box. Crystal took the second copy, which Roy had not read, to another office to be notarized.
Crystal, on the other hand, testified that she and Roy walked together to the office of a Greeneville attorney, Ron Chestnut, where Janine Pryor notarized the prenuptial agreement. Ms. Pryor testified at trial that Roy and Crystal came to her office on April 24, 2006 where they signed a prenuptial agreement and she notarized it. Ms. Pryor did not have any record of this event, which took place over five years ago, because she does not keep a log of the documents she notarizes. She testified she notarizes over 200 documents a year. Plaintiff testified he had been to Ron Chestnut's office before, but he was not there on April 24, 2006.
For reasons that will become clear during the course of this opinion, the Court credits the plaintiff's testimony concerning the prenuptial agreement. In this regard, the Court finds that Ms. Pryor is too far removed from the incident, more than five years, and notarizes too many documents each year, more than 200, to be a reliable witness on this matter. Moreover, the Court notes that during Ms. Pryor's testimony she appeared extremely nervous and unsure of her testimony. The Court does not credit her testimony.
3. Spectorsoft and eBlaster
Before Roy and Crystal were even married, Crystal purchased spyware from a company called Spectorsoft. Spectorsoft records unequivocally establish that, on March 21, 2006, before Crystal and Roy were married, Crystal Goan purchased Spectorsoft's spyware called eBlaster with her credit card and had a CD of the software sent to her law offices in Greeneville, Tennessee.
eBlaster is a computer software program that can perform various spyware functions. It can record every keystroke made on the computer on which it is installed. It can also keep track of all websites visited and all applications used on that computer, and it can capture screenshots of instant messages and cached webpages.*fn1 In addition, it can be directed to compile a report of this information at selected time intervals and send that report to a designated third party email address. Further, it can be directed to automatically forward copies of incoming email accessed on that computer to the third party email address. Each individual email is sent separately and independently from the eBlaster reports. eBlaster can also forward to this third-party email address copies of instant messages or "chat" messages as they are occurring. Even with an anti-virus program, eBlaster generally cannot be detected on the computer on which it is installed unless a person knows the "hot key" combination, the three key combination which must be depressed simultaneously in order to make eBlaster's dialog box appear on the computer screen. Once the dialog box appears on the screen, a username and password is required in order to go to the eBlaster control panel. At the control panel, the user chooses the settings for eBlaster to provide the desired information.
After she and Roy were married, Crystal surreptitiously installed eBlaster on June 12, 2006, at 8:29 pm on a computer owned by KLC that was commonly referred to as Roy's sales desk Dell computer (the Dell computer) in the KLC Greeneville office. The Dell computer was the computer that Roy most commonly used, and his children used this computer on the few occasions they visited from Mississippi. Crystal frequently used the Dell computer.
In May or June of 2007, KLC replaced and upgraded the Dell computer with an HP Vista computer (the Vista computer). Roy then used the Vista computer at his sales desk in the sales office as his primary computer. Roy's children and Crystal were also allowed to use this computer. Spectorsoft records unequivocally establish that, on June 27, 2007, Crystal purchased a second eBlaster software package. She surreptitiously installed it on the Vista computer on Roy's sales desk that same day.
4. The Computers and Printers in the KLC Office
The KLC office in Greeneville had a large, central sales office furnished with at least six desks, each having its own computer. The sales office was a large open area, and each person in the sales office could see everyone else's desk. The Dell computer, and later the Vista computer, were located on Roy's sales desk in this main sales office. Another, smaller office was attached to the large sales office. This smaller office belonged to Andrea Hill, office administrator for KLC in Greeneville. All the computers in the sales office were networked to an administrative computer in Hill's office. To access her computer, Hill had to enter her username and password. If Hill's computer was logged on, then the computers in the sales office were accessible as well without the need to enter a username or password. If Hill's computer was shut down, then the computers in the sales office each could be accessed with a username and password specific to that individual computer. The computers were networked to allow all the sales agents for KLC to use a special inventory and invoicing program designed specifically for lumber companies. Hill's computer was never shut down, except for maintenance, because KLC salespersons who travelled around the region needed to be able to come in at odd times to enter a sales order into the inventory and invoicing program. There were no printers in the large sales office. There were two printers in Hill's office which were routed through her administrative computer. In order to print something from one of the sales office computers, Hill's computer had to be logged on; if Hill's computer was not logged on, then anything sent to the printers in her office would queue up and not print out until the next time Hill logged onto her computer. Finally, access to the KLC computer system did not give one access to another person's personal email account. Even if Hill's computer was logged on or someone had properly logged into one of the sales desk computers, one could not access another individual's personal email account without that person's email account username and password.*fn2
5. Initiation of Divorce Proceedings
During the course of the parties' marriage, plaintiff's children each
visited about a total of two weeks until, in February 2007,
plaintiff's son came to live with plaintiff and the defendant. Under
the pressures of a blended family, Roy's continued drinking, and
Crystal's suspicions about Roy's fidelity, the marriage continued to
learned on or about August 27, 2007, that Roy had had dinner with a
female friend during a trip to Mississippi. When confronted about it,
Roy lied and denied having seen this friend. For her part, Crystal was
engaged in an affair with attorney Todd Shelton who testified at trial
that he had had an intimate relationship with Crystal beginning in the
fall of 2007 and continuing into 2008. On September 7, 8, and 9, 2007,
Crystal and Shelton stayed together at the Grove Park Inn in
Asheville, North Carolina while Roy was on a business trip.*fn3
On September 21, 2007, Crystal had Roy served with divorce
papers and a temporary restraining order forcing Roy out of the home.
6. Reconciliation Attempts
The following week, on the evening of September 26, 2007, the couple talked. Crystal told Roy that if he would go to alcohol rehabilitation, she would give their marriage another try. They discussed the conditions under which such an attempt would take place and decided to memorialize their agreement in an agreed order which they would submit to the court in their divorce case. The next day, on September 27, 2007, Crystal met Roy at the Greeneville KLC office with the agreed order she had drafted.
They reviewed it and signed it. At trial, Todd Shelton testified that on September 27, 2007, Crystal gave him a sealed manila envelope and asked him to take it to Judge Wright, the state court judge assigned to the Klumb divorce case, for Judge Wright's signature. Shelton took the envelope to Judge Wright who opened it and signed it. It was an agreed order signed by plaintiff and defendant in the Klumb divorce case.
7. Events While Plaintiff was in Rehabilitation
On September 29, 2007, plaintiff and defendant left Greeneville to drive to Ft. Lauderdale, Florida where plaintiff enrolled in a recovery program for alcohol addiction, and defendant returned to Greeneville. Roy had given his car keys, with keys to the KLC office on the key chain, to Crystal so that she could use his vehicle while he was away. While he was gone, defendant sent cards to plaintiff indicating she wished for his "safe and sober" return. She asked him to be home for her birthday on October 31, 2007.
One evening, while Roy was still at the recovery center in Florida, KLC truck driver Roger Colyer came into the KLC office at 3 or 4 am, as was his normal practice, to clock in and prepare his load for delivery. He saw Crystal in the sales office using one of the computers. Later that morning, Colyer called Andrea Hill to tell her what he had seen. At trial, Hill confirmed that one morning when Roy was at the recovery center, Colyer called her to tell her that he had seen Crystal in the sales office using one of the computers at 3 or 4 am. In response to Colyer's information, Hill shut down her administrative computer that evening, contrary to her previous practice. In doing so, she also shut down the printers in her office. The following morning when she returned to the office and logged into her administrative computer, one of the printers printed an email sent to plaintiff by a woman the Court shall refer to simply as "R.G." The heading of the email was as follows:
28 Sep 2007 07:29:30-0400 From : "rg.@..."*fn4 Alert To:email@example.com Subject: [0060-rcv-eblaster] Re: letter Jt. Ex. 17. The email was addressed "Dear Roy" and was closed, "Always," followed by R.G.'s first name. (Jt. Ex. 17.) Hill put the two page email in a folder to give to Roy when he returned from the recovery center.
Travis Reno was employed as a salesman at KLC during all times relevant to this lawsuit. He testified that he had once helped Crystal use a USB key on one of the KLC computers to retrieve a legal document and that he had seen her use a USB key on other occasions as well.*fn5 He further testified that Crystal came in regularly during the day for ten or fifteen minutes to check her email. One day, while Roy was still at the recovery center in Florida and Reno was sitting at a desk next to Crystal, he noticed multiple lines in her email inbox containing Roy's name and "eBlaster" next to it. He could also see that her email address was firstname.lastname@example.org.
8. Plaintiff's Return to Greeneville
On October 27, 2007, plaintiff arrived home from the recovery center. To his surprise, his wife did not receive him warmly. On October 29, 2007, plaintiff returned to work for the first time since going to rehabilitation. At that time, Andrea Hill gave him the email she had placed in the folder for safe keeping and told him that Roger Colyer had seen Crystal in the office using the Vista computer at 3 or 4 am when he was at the recovery center. Travis Reno also told plaintiff what he had seen on Crystal's email account, explained to him that eBlaster was spyware, and showed him the eBlaster program on the internet. Reno testified that plaintiff was "in shock" and that plaintiff unplugged the Vista computer.
On October 30, 2007, defendant's attorney, Jerrold Becker, sent a letter to plaintiff's attorney, Kidwell King, advising Mr. King that defendant wanted plaintiff to leave the house. (Jt. Ex. 78.) On October 31, 2007, plaintiff moved to the Hampton Inn in Greeneville.
In his October 30, 2007 letter, Mr. Becker, Crystal's attorney, attached an agreed order signed by Roy and Crystal dated September 27, 2007. Paragraph 5 on the third page of this agreed order mentioned an amendment to the prenuptial agreement and provided, inter alia, that if either party was unfaithful, the prenuptial agreement would be deemed null and void, all assets acquired before the marriage would be treated as marital assets, and the injured party would receive three fourths of the marital assets in the divorce. (Jt. Ex. 3. & 5). This agreed order was signed on the last page by the parties and by Hawkins County Circuit Court Judge Tom Wright. None of the individual pages were numbered or initialed.
Within a few days after returning from the recovery center, Roy met with Mr. King and saw this agreed order attached to Mr. Becker's letter. Plaintiff testified that when he saw paragraph 5 of the agreed order he was shocked because he was certain that the agreed order he had reviewed with Crystal and signed on September 27, 2007 did not have this language. According to Roy, there was never an amendment to the original prenuptial agreement and he never would have agreed to make the prenuptial agreement null and void for any reason; nor would he have agreed to make his KLC and partnership assets part of the marital property since his entire purpose in having the prenuptial agreement was to protect those assets for his children.
10. The Recorded Phone Conversations
On November 6, 2007, plaintiff's attorney received a letter by fax from defendant's divorce attorney. The letter included a copy of the prenuptial agreement dated April 24, 2006. Roy left for Gulfport, Mississippi that same day to retrieve his copy of the prenuptial agreement that he had stored in a lockbox. While he was driving to Mississippi to retrieve his copy of the prenuptial agreement, Crystal phoned. Crystal recorded this conversation which was introduced as an exhibit at trial, both in audio and in transcript form. In the conversation, Roy told her that certain employees thought she had installed eBlaster on the computers at the office. Crystal asked, "What is eBlaster ?" (Jt. Ex. 5 at
p. 6). She also told Roy she would "set this s**t" straight" with the person who accused her of putting eBlaster on his computer. (Id. at 9). Crystal told plaintiff she had always been faithful to him and never lied to him. (Id. at 2). She denied having been at the KLC office at night during the time he had been at the recovery center. (Id. at 7). She told plaintiff that she had read the September 27, 2007 agreed order to him, including the paragraph which rendered the prenuptial agreement null and void in the event of infidelity, and that she had explained it to him and answered his questions about it. (Id. at 2.) Roy disputed these assertions. Crystal also asked Roy if he did not remember signing a new amended prenuptial agreement to give her further protection if he cheated on her. He stated, "I remember ." (Id. at 8).
Roy and Crystal had another phone conversation the morning of November 8, 2007 which Crystal also recorded and which was also made an exhibit at the trial in audio and transcript form. Again, Roy told Crystal that some of the employees at KLC were suspicious she had installed eBlaster on a KLC computer at the office. Sounding incensed, Crystal responded, "Number One, I don't have to have f***ing eBlaster. They're on my server. I learned the hard way. Anything they have, do, I have access to. I can call up my own IT guy-tap it in-because my name is Klumb. I don't need f***ing eBlaster." (Jt. Ex. 5 at pp. 14 -15). The Court interprets Crystal's response to Roy's inquiries about eBlaster in both the November 6 and November 8, 2007 conversations as unequivocal denials that she put eBlaster on any computer at KLC.
11. The Two Prenuptial Agreements
On or about November 14, 2007, after Roy had retrieved his signed prenuptial agreement and returned to Greeneville, he met with his attorney, Mr. King, to compare the prenuptial agreement attached to the letter of Mr. Becker, Crystal's attorney, to the prenuptial agreement Roy had stored in the lockbox. Both were signed and dated by Crystal and Roy.
Section VI of the prenuptial agreement attached to Mr. Becker's letter stated in relevant part:
The parties also stipulate and agree that if either of the two individuals allege and [sic] can be proven in front of a judge, and the burden of proof being CLEAR AND CONVINCING EVIDENCE, that the other individual has committed adulterous activity during the marriage, (referred to as "committing spouse"), then all marital assets shall be divided as a three-quarters (3/4) split, and the complete document will be rendered null and void, the non-committing spouse retaining the larger portion and the spouse proven of committing adultery shall retain one quarter (1/4) of the marital assets. (Jt. Ex. 34) (emphasis added). Section VI of the prenuptial agreement plaintiff retrieved from his lock box provided
The parties also stipulate and agree that if either of the two individuals allege and [sic] can be proven in front of a judge, and the burden of proof being CLEAR AND CONVINCING EVIDENCE, that the other individual has committed adulterous activity during the marriage, (referred to as "committing spouse"), then all marital assets shall be divided as a three-quarters (3/4) split, and at the complete exclusion of separate property herein listed as of the date of signing in Exhibit A, the non-committing spouse retaining the larger portion and the spouse proven of committing adultery shall retain one quarter (1/4) of the marital assets. (Jt. Ex. 6) (emphasis added). The same exhibit was attached to both prenuptial agreements listing those items of plaintiff's property which were not to be considered part of the marital property. In this list, plaintiff explicitly designated all his assets, interest and stocks in KLC and in the partnership with his siblings which were acquired before the marriage as exempt from the marital property. At trial, Plaintiff testified that the "null and void" language found in the prenuptial agreement attached to Mr. Becker's letter was not included in the prenuptial agreement that he and defendant had read line by line and signed five days before their marriage.
12. KLC's Attempts to Uncover eBlaster
About the same time Roy compared the language of the two prenuptial agreements, he received an anonymous text message that Crystal was having an affair with Todd Shelton. He hired a private investigator to look into that matter and left the issue of eBlaster on the KLC computers to the KLC company lawyers who attempted, without success, to determine from defendant's attorney whether defendant had installed eBlaster on one or more KLC computers. The KLC company lawyers eventually sent a subpoena to Spectorsoft for information. In the meantime, the divorce case slowly moved forward. Crystal's deposition in the divorce proceeding was taken on two days, March 13, 2008 and April 7, 2008. Plaintiff sent defendant a subpoena asking defendant to produce, inter alia, all documents which defendant believed supported her allegation that plaintiff had had an affair during their marriage and all documents obtained through the eBlaster software. Pursuant to a subpoena duces tecum, defendant produced a stack of documents a couple of inches thick containing eBlaster reports of Roy's computer activities on the Dell and Vista computers and copies of emails sent to Roy at his AOL email address which were intercepted by eBlaster and sent to Crystal at email@example.com.
B. Forensic Examination of the KLC Computers and Crystal's Laptop
After a KLC information technology employee could not locate eBlaster on any of the KLC computers in Greeneville, Roy independently hired William Dean, a forensic computer expert, to examine several of the computers which were or had been located in the KLC sales office in Greeneville. Dean began his examination of the KLC computers in April 2008. Working with Spectorsoft technicians after KLC convinced Spectorsoft that KLC owned the computers in question, Dean obtained the "hot key" combination and the password for the eBlaster programs Crystal had bought, enabling him to reveal the eBlaster control panel on both the old Dell and the Vista computers. Dean did not find eBlaster software on any other computer. The password for the eBlaster program was cmgoan369. Using data recovery software, Dean also examined the hard drives of the Dell and Vista computers and two other computers which had been located in the KLC sales office. After sending a discovery request in Spring 2008, defendant was finally able to obtain Crystal's Gateway laptop in October 2008, and Dean also examined this laptop.
Dean's examination of the Dell and Vista computers showed that when Crystal installed eBlaster on them, she set up the program to send a report of all computer activities to her email address at firstname.lastname@example.org every hour. She also directed that a copy of every email sent to Roy Klumb at his personal AOL email account and accessed from the Dell or Vista computers would be sent automatically to her email address of email@example.com. Roy had not given Crystal a copy of his email password, but she was able to obtain it because the keylogging function of eBlaster recorded it when Roy logged in to get his email. At the trial, Roy testified he knew Crystal had an email address at aol.com but he was not aware of her Yahoo email account. Crystal also set up folders in her Yahoo email account to organize the emails she received. She named one of these folders "infedility" [sic]. Thereafter, she received hourly reports at firstname.lastname@example.org of all internet activity on the Dell and Vista computers, as well as copies of all emails and instant messages sent to Roy that he accessed from the Dell or Vista computers. (See Trial Exhibit 87.*fn6 ) It is these reports and copies of emails that defendant provided at her March 13, 2007 deposition pursuant to the subpoena duces tecum.
As previously indicated, Dean examined the hard drives of four KLC sales office computers and defendant's Gateway laptop computer. In doing so, Dean found evidence that someone had opened three documents entitled E-Mail 1, E-Mail 2, and E-Mail 3 from a USB key on one of the KLC computers on October 14, 2007, a date when plaintiff was in Florida at the recovery center. Dean also found evidence that the serial number of this USB key matched the serial number of a USB key which had been used on Crystal's Gateway laptop as recently as May 7, 2008. At trial, Crystal testified she had not had a USB key since her first laptop and that USB key had been destroyed by an electrical surge caused by lightning on September 3, 2007. Crystal further testified that she could not have used a USB key on her laptop on May 7, 2008, because she had given her laptop to her divorce attorney when plaintiff had requested it in discovery. There was no testimony or corroborating evidence to support Crystal's testimony in this regard, and the forensic evidence is contradictory; the Court does not credit her testimony.
3. The September 25, 26, and 28, 2007 Emails
Dean's examination of the materials provided by defendant pursuant to the subpoena duces tecum revealed that there are at least three different versions each of three emails: one dated September 25, 2007, one ...