UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Amy St. Pierre

v. Case No. 20-cv-1173-PB Opinion No.

Stephen J. Griffin

MEMORANDUM AND ORDER

This case stems from a business dispute between Stephen

Griffin and John St. Pierre that is playing out in a separate

state court case. Mr. St. Pierre’s wife, Amy, contends in the

current action that Griffin injured her during his battle with

her husband by improperly accessing documents on her Google

Drive, retaliating against her in the state court case, and

defaming her in a book he wrote. Her complaint asserts claims

for (1) Stored Communications Act (“SCA”) violations; (2)

identity fraud; (3) invasion of privacy; (4) retaliation; and

(5) defamation. Griffin, having removed Mrs. St. Pierre’s suit

to federal court, now moves to dismiss her complaint. After

evaluating the parties’ arguments, I dismiss the complaint. I. BACKGROUND 1

The parties’ acrimony dates to at least 2018, when Mr. St.

Pierre was terminated as CEO of Legacy Global Sports and

replaced by Griffin. See Compl., Doc. No. 1-1 ¶¶ 7-9. What

followed were allegations of computer hacking, a lawsuit in

state court, and a tell-all book -- all of which inform various

elements of Mrs. St. Pierre’s complaint.

1. Mrs. St. Pierre’s Google Drive

During his time as CEO of Legacy, Mr. St. Pierre used a

corporate email address and an associated Google account for

both business and personal matters. Id. ¶ 8. Mrs. St. Pierre

maintained her own email address and Google account and used

them to share certain documents stored on her Google Drive with

her husband’s corporate Google account. Id. ¶ 8.

Legacy retained control of Mr. St. Pierre’s corporate

Google account after he was fired. Griffin subsequently used

that control to access Mrs. St. Pierre’s shared documents. Id.

¶¶ 12-13. When Mrs. St. Pierre realized that Griffin had gained

access to the shared documents, she deleted them and later filed

1 The facts recounted are drawn from plaintiffs’ complaint, public records, documents central to the disputed claims, and “documents sufficiently referred to in the complaint.” See Freeman v. Town of Hudson,

(1st Cir. 2013) (quoting Watterson v. Page,

(1st Cir. 1993)).

2 criminal complaints against Griffin with the FBI and a local

police department. Id. ¶¶ 16-17.

2. Litigation Behavior

Legacy sued Mr. St. Pierre after he was terminated for

improperly using corporate resources in an external competitive

venture. Id. ¶ 9. Mrs. St. Pierre is not a party to that

litigation. Even so, she alleges that Griffin retaliated

against her after she submitted her criminal complaints to the

police and FBI. Id. ¶¶ 18-20. She says that Griffin directed

his attorneys to “issue two subpoenas for Mrs. St. Pierre’s

personal email and private information.” Id. ¶ 21. A state

court judge quashed both subpoenas, id. ¶ 22, and his decision

was reaffirmed after Legacy’s attorneys asked a second judge to

reconsider, id. ¶ 23, 28.

3. Griffin’s Book

Griffin published a book, “Front Row Seat: Greed and

Corruption in a Youth Sports Company,” in November 2020. Id.

¶ 30. Amazon.com categorized the book under “Biographies of

White Collar Crimes” and “White Collar Crimes True Accounts.”

Id. Griffin referenced Mrs. St. Pierre a handful of times in

the book. Describing her role in the disputed events

surrounding Mr. St. Pierre’s termination, Griffin wrote that he

“couldn’t fathom the nerve or ignorance of this woman. Her

husband was terminated by the company and was in the midst of a

3 messy legal battle, yet she thought it was appropriate to access

the company’s Google Drive and delete files? Give me a break.”

Id. He also sarcastically referred to Mrs. St. Pierre as “a

classy lady.” Id. Griffin promoted the book on LinkedIn, a

social media platform focused on employment history and

opportunities, leading Mrs. St. Pierre to delete her profile on

the site. Id. ¶ 31.

Griffin also reported in the book that Mr. St. Pierre “told

[him]” about “an ‘awful’ night dealing with his wife,” that “she

was yelling at him and he didn’t want the kids to hear it from

their bedrooms,” and that “things were not good between him and

his wife.” Id. ¶ 33. Griffin also wrote that Mrs. St. Pierre

was “retired” when she was, in fact, still working. Id. ¶ 13.

II. STANDARD OF REVIEW

To overcome a motion to dismiss under Rule 12(b)(6), a

plaintiff must make factual allegations sufficient to “state a

claim to relief that is plausible on its face.” Ashcroft v.

Iqbal,

(2009) (quoting Bell Atl. Corp. v.

Twombly,

(2007)). Under this plausibility

standard, the plaintiff must plead “factual content that allows

the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.”

This pleading

requirement demands “more than a sheer possibility that [the]

defendant has acted unlawfully” or “facts that are merely

4 consistent with [the] defendant’s liability.”

Although the

complaint need not set forth detailed factual allegations, it

must provide “more than an unadorned, the-defendant-unlawfully-

harmed-me accusation.”

In evaluating the pleadings, I disregard any conclusory

statements in the complaint and credit as true all non-

conclusory factual allegations and the reasonable inferences

drawn from those allegations to determine whether the claim is

plausible. Ocasio-Hernández v. Fortuño-Burset,

(1st Cir. 2011). I “may also consider ‘facts subject to

judicial notice, implications from documents incorporated into

the complaint, and concessions in the complainant’s response to

the motion to dismiss.’” Breiding v. Eversource Energy,

(1st Cir. 2019) (quoting Arturet-Vélez v. R.J.

Reynolds Tobacco Co.,

, 13 n.2 (1st Cir. 2005)).

III. ANALYSIS

Mrs. St. Pierre’s claims fall neatly into three categories.

Her SCA, identity fraud, and invasion of privacy claims concern

Griffin’s activity on her Google Drive. Her retaliation claim

focuses on Griffin’s litigation tactics in the related state

court case, and her defamation claim is based on statements

Griffin made about her in his book.

5 A. Google Drive Claims

Mrs. St. Pierre’s SCA, identity fraud, and invasion of

privacy claims are all directed at Griffin’s use of her

husband’s corporate Google account to access documents on Mrs.

St. Pierre’s Google Drive. I take up Griffin’s challenge to

each of these claims in turn.

1. Stored Communications Act Claims

The SCA is a criminal statute that can also support a

private civil action for damages.

, 2707. It

provides in pertinent part that a person commits a crime if he:

(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or

(2) intentionally exceeds an authorization to access that facility;

and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished as provided in subsection (b) of this section.

(a). Mrs. St. Pierre asserts that Griffin

violated this provision by using her husband’s corporate Google

account to access the documents that are the subject of her

complaint.

I agree with Griffin that Mrs. St. Pierre’s SCA claim must

be dismissed. Mrs. St. Pierre concedes: (1) that she shared

access to the documents Griffin accessed with her husband’s

6 corporate Google account, Compl., Doc. No. 1-1 ¶ 12; (2) she

continued to share access to the documents after her husband was

terminated, id. ¶ 21; and (3) the account was a corporate asset

that Legacy was entitled to control after her husband was fired,

id. ¶ 10. Although she claims that Griffin committed identity

fraud by continuing to use her husband’s profile in connection

with his corporate Gmail address, she fails to claim that this

alleged deception played a role in her decision to continue to

share the documents with the account after Mr. St. Pierre was

fired. Given these circumstances, Mrs. St. Pierre is in no

position to claim that Griffin accessed the shared documents

without authorization. See § 2701(a)(1).

Although Mrs. St. Pierre does not press the point, she also

lacks a plausible claim that Griffin exceeded any authorization

she gave him to access the documents by copying them,

distributing them, or using them for another improper purpose.

When access to electronically stored documents has been granted,

the SCA is not violated even if the person who was granted

access later uses the documents for an unauthorized purpose.

See TLS Mgmt. & Mktg. Servs., LLC v. Rodriguez-Toledo,

(D.P.R. 2016); Sherman & Co. v. Salton Maxim

Housewares, Inc.,

(E.D. Mich. 2000);

see also Van Buren v. United States,

, 1655

7 (2021) (construing similar language in the Computer Fraud and

Abuse Act).

2. Identity Fraud Claim

Mrs. St. Pierre asserts that Griffin is liable for identity

fraud because he used her husband’s corporate Google account to

access documents on her Google Drive. She bases her claim on

, which makes it a crime to “pose[]

as another person with the purpose to defraud . . . .”

As Griffin notes, § 638:26 is a criminal statute. It does

not provide a private civil right of action, and St. Pierre has

failed to point to any relevant legislative history or

controlling case law that allows a plaintiff to base a civil

claim on this provision. Accordingly, I agree that the claim

must be dismissed. See Menard v. Tyndall,

, at

*1 (N.H. Sup. Ct. Oct. 26, 2018); Snierson v. Scruton,

(2000); Marquay v. Eno,

(1995).

3. Invasion of Privacy Claims

Mrs. St. Pierre accuses Griffin of invading her privacy by

accessing certain files on her Google Drive that she had shared

with her husband’s corporate Google account. Although she

generally claims that she stored “pictures and information about

. . . her family, financials, health records, and other personal

matters” on her Google Drive, Compl., Doc. No. 1-1 ¶ 12, she

does not allege that she shared any sensitive personal files

8 with her husband’s corporate account. Instead, the only two

files she specifically states were shared and later accessed by

Griffin were “Seacoast Sports Village.docx” and “Seacoast Sports

PP.pptx,” neither of which on its face appears to contain

sensitive personal information. Compl., Doc. No. 1-1 ¶ 12; Pl’s

Reply, Doc. No. 11 ¶ 4. 2

Based on these alleged facts, Mrs. St. Pierre claims that

Griffin “invaded [her] privacy when he accessed her personal

account and intentionally intruded upon her private affairs

contained in her account.” Compl., Doc. No. 1-1 ¶ 50. Reading

her complaint generously, I construe Mrs. St. Pierre’s complaint

to assert a claim for invasion of privacy by “intrusion upon

physical and mental solitude or seclusion.” See, e.g., Karch v.

BayBank FSB,

(2002) (describing intrusion upon

seclusion claim). 3

2 Mrs. St. Pierre also attached a screen shot of her husband’s corporate Google Drive to her complaint. Compl., Doc. No. 1-1 Ex. 4. Mrs. St. Pierre says that she shared these files with her husband, but she does not allege that Griffin ever accessed the files, nor does she assert that any of those files contained sensitive personal information. See id. ¶ 26. Instead, she confirms that the files related to the administration of an ice hockey rink that the St. Pierres were involved with. Id.

3 I do not understand Mrs. St. Pierre to allege an invasion of privacy by public disclosure of private facts claim, see Karch,

(outlining elements of the tort), as she does not claim that either of the documents that Griffin shared was “intimate” as contemplated by the tort, see id.; see also Restatement (Second) of Torts § 652D cmt. b (1977) (explaining that relevant disclosures involve “intimate details . . . spread

9 A person who intentionally “intru[des], upon a plaintiff’s

physical and mental solitude or seclusion” is liable for

intrusion upon seclusion when the intrusion is “offensive.”

Karch,

; see also Restatement (Second) of Torts

§ 652B. An intrusion will be insufficiently offensive to

support an intrusion upon seclusion claim unless it exceeds “the

limits of decency” such that the defendant “should have realized

that” it would upset “persons of ordinary sensibilities.”

Karch,

-35 (quoting Fischer v. Hooper,

(1999)). 4 The privacy interest intruded upon must be

“something secret, secluded or private pertaining to the

plaintiff.” Fischer,

(quoting Hamberger v.

Eastman,

(1964)).

When considering whether an item is “secret, secluded, or

private,” the New Hampshire Supreme Court “determine[s] whether

before the public gaze in a manner highly offensive to the ordinary reasonable man”). And her complaint does not allege either of the remaining invasion of privacy torts: placing her in a false light in the public eye or appropriation of her name or likeness. See Mansfield v. Arsenault, No. 2020-0100,

, at *1–2 (N.H. Jan. 8, 2021) (outlining elements of the torts); Compl., Doc. No. 1-1 ¶ 50.

4 In Karch, the New Hampshire Supreme Court explained that Fischer was “consistent with the Restatement (Second) of Torts § 652B” with respect to how “offensive” a defendant’s intrusion must be before it is actionable.

. Thus, even though the Restatement requires “highly offensive” conduct, I construe the New Hampshire Supreme Court’s requirement of “offensive” conduct to be materially the same.

10 a person has a reasonable expectation of privacy in [it].” See

Remsburg v. Docusearch, Inc.,

(2003) (citing

Fischer,

).

Whether there is a reasonable expectation of privacy can be

a question for a factfinder, but it “becomes a question of law

if reasonable persons can draw only one conclusion from the

evidence.” Remsburg,

. Factors that can be

considered include “the degree of intrusion, the context,

conduct and circumstances surrounding the intrusion as well as

the intruder’s motives and objectives, the setting into which he

intrudes, and the expectations of those whose privacy is

invaded.”

(quotation omitted).

Although Griffin was never Mrs. St. Pierre’s employer,

their conflict centers on his access to documents she created

and shared in a workplace setting. Several courts have

considered the relevant privacy interests at stake when

employers access personal emails or files stored on company-

owned devices or accounts. Those courts have concluded that

employees’ privacy rights are often diminished but are not

necessarily expunged in the workplace.

For example, in Clark v. Teamsters Local Union 651, an

employer accessed a former employee’s Dropbox 5 account “to search

5 Dropbox is analogous to Google Drive; both are file storage and collaboration services.

11 for work-related files.”

(E.D. Ky.

2018). The employee had “stored a mixture of work-related and

personal documents” in the account and “tied [it] to her work e-

mail.”

. The employer accessed the Dropbox account

after using the “lost password” option, which sent a new

password to the work email to which the employer had access.

. The court first noted that in some settings,

“district courts have held that an employee does not have a

reasonable expectation of privacy in e-mails sent or received

using a work e-mail address.”

(collecting cases).

And if an employee does not have a reasonable expectation of

privacy in her work-related emails, then “it logically follows

that [she] do[es] not have a reasonable expectation of privacy

in a Dropbox account that is tied to [her] work e-mail.”

Further, the court found that the intrusion was not offensive

because the employer “had a legitimate business purpose to

recover documents related to [its] operations.”

A district court in New Jersey reached a similar conclusion

in Christie v. Nat’l Inst. for Newman Stud., No. CV 16-6572

(FLW),

(D.N.J. Apr. 30, 2019). The employer in

Christie reviewed some of the employee’s personal emails that

were being automatically downloaded to a company desktop email

application containing his work emails. Id. at *11. The

employer never logged into the employee’s personal email

12 account; she merely viewed emails that were passively downloaded

to his work desktop. Id. at *8. The court saw this intrusion

as “limited” and considered several factors to determine whether

there was a reasonable expectation of privacy in the relevant

emails. Id. at *12. It noted that it was the employee who

decided to use an email program that mixed his personal and

business email addresses. Id. It also identified that the

employer owned the computer, “was granted the authorization to

access the [employee’s work] desktop,” only reviewed a few

emails, and was only searching for emails it had a legitimate

business purpose to review. Id. Finding that there was no

reasonable expectation of privacy in personal emails in these

circumstances, the court held that any invasion was not

sufficiently offensive. Id. at *13.

Even when using an employer-provided account, employees can

retain some expectation of privacy in their files or messages,

such as where the employer condones personal use -- or the files

are marked as personal or confidential. See Mintz v. Mark

Bartelstein & Assocs.,

(C.D. Cal.

2012) (finding that an employee retained a “limited expectation

of privacy” in a phone’s text messages, even when the employer

“owned the account and paid all the bills” because the employer

“was aware of and permitted [him] to make personal calls”);

Convertino v. United States DOJ,

(D.D.C.

13 2009) (holding that an employee who emails his lawyer through an

employer-provided account can “reasonably expect[] his e-mails

. . . to remain confidential”).

Mrs. St. Pierre alleges that Griffin’s actions were

sufficiently offensive because he “target[ed] [her], posing as

her husband.” Compl., Doc. No. 1-1 ¶ 51. But nowhere does she

say that Griffin ever induced her into believing that he was, in

fact, Mr. St. Pierre, or that she had communicated with Mr. St.

Pierre’s Legacy account after Griffin took over. She only

claims that Griffin “accessed” her account “for several months.”

Id. ¶ 25. The complaint only pleads with sufficient specificity

that Griffin accessed the two files Mrs. St. Pierre shared with

her husband’s account. See Christie,

*12 n.15

(explaining that plaintiffs must identify the “specific”

documents the defendant supposedly read). So her claim rests on

whether she had a reasonable expectation of privacy in those

files and whether Griffin went “beyond the limits of decency” in

viewing them. See Remsburg,

.

Even construing the complaint generously, I determine that

Mrs. St. Pierre did not have a reasonable expectation of privacy

in the documents she alleges were accessed and shared by

Griffin. She concedes that she shared the documents with a

corporate Google account and continued to share them after her

husband transferred that account to Griffin. She also made no

14 attempts to protect or encrypt the documents should her husband

lose access to his account, nor did she give the files names

that would flag that they were not business-related. Griffin,

for his part, having terminated Mr. St. Pierre for allegedly

using Legacy resources in a competing venture, had a business

purpose for examining Mr. St. Pierre’s files and is not alleged

to have induced Mrs. St. Pierre into believing he was her

husband. Therefore, the documents were not “secret, secluded,

or private” such that Mrs. St. Pierre had a reasonable

expectation of privacy in them. See Remsburg,

.

Nor can any intrusion by Griffin in accessing the documents be

seen as “beyond the limits of decency” to people of “ordinary

sensibilities.” See

Accordingly, Mrs. St. Pierre’s

invasion of privacy claim must be dismissed.

B. Litigation Activity Claims

Griffin and Mr. St. Pierre are presently locked in an

acrimonious state court litigation. While not a party to that

case, Mrs. St. Pierre received two subpoenas from Griffin’s

attorneys. One was for all her emails for the prior four years,

and the other for more information related to her computer and

cell phones. Compl., Doc. No. 1-1 ¶ 21. Mrs. St. Pierre

successfully had the subpoenas quashed in state court. Id.

¶¶ 22-28. The court described the subpoenas as “defective” and

“the classic explanation of a fishing expedition.” Id. ¶ 28.

15 Mrs. St. Pierre spends considerable time in the complaint

explaining how Legacy’s attempts to subpoena her were

“intentionally deceitful,” id. ¶ 23, and “fraudulent,” id.

¶¶ 24, 26. Despite her success in quashing the subpoenas, Mrs.

St. Pierre now brings a claim that Griffin retaliated against

her in the state court case after she reported him to law

enforcement. Id. ¶¶ 53-55.

Mrs. St. Pierre’s complaint fails for two reasons. First,

she has failed to tie her allegations to a specific cause of

action. New Hampshire does not recognize a general tort for

retaliation outside the workplace. Cf. U.S. Equal Emp.

Opportunity Comm’n v. Fred Fuller Oil Co.,

(2016).

Next, to the extent that her complaint relies on Griffin’s

aggressive litigation tactics, it cannot survive under New

Hampshire law, which immunizes “[s]tatements made in the course

of judicial proceedings” from civil suit “if the statements are

pertinent or relevant to the proceedings.” Lath v. City of

Manchester, NH,

,

, at *2 (D.N.H.

Apr. 9, 2018) (quoting Provencher v. Buzzell-Plourde Assocs.,

(1998)). The appropriate venue for Mrs. St.

Pierre to pursue redress for expenses related to the state court

litigation is before the state court. See Emerson v. Town of

Stratford,

(1995) (explaining that “the trial

16 court is in the best position to decide whether a party’s claim

constitutes bad faith or is patently unreasonable” (quotation

omitted)).

C. Defamation Claim

Mrs. St. Pierre bases her defamation claim on statements

Griffin made about her in his book. 6 I focus here on certain

statements Griffin made about the state of her marriage, as the

other statements are either not defamatory on their face or are

mere nonactionable statements of opinion. 7

Griffin’s most concerning false statements are his

allegedly false claims that Mr. St. Pierre had told Griffin that

“he had an ‘awful’ night dealing with his wife” where “she was

yelling at him and he didn’t want the kids to hear it from their

6 Mrs. St. Pierre also cites several allegedly defamatory statements Griffin made about her husband. She cannot ground her defamation claim on these statements, however, because they are not “‘of and concerning’ [her], a requirement for showing defamation.” Flotech, Inc. v. E.I. Du Pont de Nemours & Co.,

, 778 n.3 (1st Cir. 1987) (quoting Rosenblatt v. Baer,

(1966)).

7 For example, Griffin’s statement that Mrs. St. Pierre had “just retired” is not defamatory on its face and his statements that she was a “classy lady” (intended sarcastically) and “ignorant” are quintessential examples of non-defamatory “opinion” statements. See Restatement (Second) of Torts § 559 cmt. e. (describing defamation standard); Automated Transactions, LLC v. Am. Bankers Ass’n,

, 532-33 (2019) (opinion statements).

17 bedrooms,” and that “things are not good between him and his

wife.” Compl., Doc. No. 1-1 ¶ 33. 8

New Hampshire law dictates that a statement is defamatory

if it “hold[s] the plaintiff up to contempt, hatred, scorn or

ridicule, or tend[s] to impair the plaintiff’s standing in the

community.” Boyle v. Dwyer,

, 554 (2019). Although

I do not doubt that false statements about marital discord can

in some circumstances support a defamation claim, the statements

Mrs. St. Pierre cites are simply not sufficiently damaging to

8 Another statement that could have been understood as a non- opinion assertion is that Mrs. St. Pierre “thought it was appropriate to access the company’s Google Drive and delete files.” Compl., Doc. No. 1-1 ¶ 30. While this statement might, at first blush, be construed as a defamatory accusation of criminal behavior, the context surrounding it (which is incorporated into the complaint by reference) makes clear that Mrs. St. Pierre “had been provided access to certain folders on the company’s Google Drive.” Stephen Griffin, Front Row Seat: Greed and Corruption in a Youth Sports Company (2020) (e-book). To echo my earlier summary about when the SCA applies, I do not understand this statement, seen in context, as an accusation of criminal conduct.

18 support a defamation claim. 9 Accordingly, her defamation claim

also fails to state a viable claim for relief. 10

9 Three-quarters of a century ago, the D.C. Circuit wrote in dicta that “[a] mere assertion of marital discord is libelous.” Thackrey v. Patterson,

(D.C. Cir. 1946). This language was later cited a handful of times but has not been relied on in over four decades. See Phillips v. Evening Star Newspaper Co.,

(D.C. 1980). Defamation is always contextual, and when “determining the defamatory character of language, the meaning of which is clear . . . the current standards of moral and social conduct” in the relevant community is an “important factor.” Restatement (Second) of Torts § 614 cmt. d. Given the ever-evolving nature of social change, what was defamatory “to one person at a given time and place” may no longer “be derogatory of another person at a different time or in a different place.” Id. I am confident that the public scorn associated with common “marital discord” is significantly less than it was seventy-five years ago.

10In dismissing Mrs. St. Pierre’s defamation claim, I attach no weight to Griffin’s argument that his statements cannot possibly be defamatory because he did not use Mrs. St. Pierre’s name and included a disclaimer in the book that it is a work of fiction. Such arguments are bound to fail whenever, as is the case here, the details included in the book “would identify [the plaintiff] unmistakably to anyone who has known [her] well for a long time (members of [her] famil[y] for example) . . . and no more is required for liability . . . in defamation law . . . .” Haynes v. Alfred A. Knopf, Inc.,

(7th Cir. 1993) (citing Baer,

).

19 IV. CONCLUSION

Defendants’ motion to dismiss (Doc. No. 6) is granted.

SO ORDERED.

/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge

September 30, 2021

cc: Amy St. Pierre Phillip Rakhunov, Esq.

20