believe that the lower court was improper when considering a twelve b six motion to dismiss for failure to state a claim that the court to construe a complaint in the light most favorable to the plaintiff and draw all motion to dismiss must not make any judgment about the probability of the plaintiff's success for a complaint we also believe that the district court's interpretation of this statute eighteen eighteen twenty eight excuse me eighteen u s c twenty five eleven one a c n d was inconsistent with the plain language and with the intent of the congress of the wiretap act that is currently amended on the the lower court held that the definition of intercept in twenty five eleven of the vajra tap act requires a quiz ition to be contemporaneous with the transmission of the corresponding communications the judge therefore dismiss count one and two against paul abstain because he determined that the shortest interval between the e mails at issue with three hours when in fact it was only two minutes the judge tendinitis coverage to determine whether there are additional in males that may have been acquired contemporaneously saying that their existence was pure speculations the district court also dismissed count three and four against j frank which alleged unlawful disclosure and use finding that these claims necessarily failed because again the e mails where not contemporaneously acquired pursuant to the act for the court hell even if these e mails were acquired contemporaneously plaintiff claim against j frank for unlawful disclosure would fail because barry cannot prove that he was damaged when j frank disclosed the communications to barry's own attorney there was never a consent given so we believe that that w erroneous finally the judge noted that barry's claim against j frank for use would also fail because barry did not allege facts to support a finding that g frank used this e mail in violation of the act  we believe that the judge was wrong because this e mails were being used already and there was a threat to be used at the trial however the exhibits that we attached to our complaint in the lower court proved that paul had already with help at least eighteen or barry's acquired e mails these were the e mails that that poll had acquired either we don't know how and when and what because discovery was due night she forward middle in the divorce proceeding right now we are in the trial we started the trial and then we will proceed next week but we know that barry so emails were actually up taint we just don't know how and when and take it into account that the shortest interval from that e mails that we've received was two minutes provided we haven't seen the actual e mails we didn't have the benefit to inspect or investigate or hire our experts to see worse i about we believe that was improper to dismiss at twelve six motion below right i don't know that we can draw any inferences from the photocopies of it contemporaneous transmission or whether they're the e mails or were intercepted from the get go in other words at the time of transmission because they're just that they're copies and photocopies and they appear to suggest at least to me that there was some later re forwarding by the wife the allegation in the complaint is that she set up one of these rules on the  computer system that her husband used her on the computer actually the actual computer that her husband used she accessed it without authority and set up this forwarding rule so that she would automatically receive the emails that were sent to her husband all of them it is the allegation not just the ones having to do with the infidelity or the alleged infidelity and that it seems to me brings  squarely within the case with the last name i can't pronounce moose cave rich yet in that case from our court that interprets this part of the statute in the meaning of intercept seems to me that that resolves the case at least at the motion to dismiss stage and in a way that's contrary to the district court's dismissal the allegation is there that's enough for purposes of the  you're entitled and we have your client to take discovery about what she actually did as a technical matter to set up this forwarding device correct we never had the benefit of the discovery to find out how and what did you take depositions in the know we we were in the allowed to even open the door to that judge durkin even though i mean in the divorce case right there depositions in the divorce case where this line of questioning might have been pursued exactly so can we we couldn't but we what we know is that paula epstein is a has a master's degree and she's a librarian and she's got the skills and she also has multiple e mails we don't know from which e mail to which e mail all we know is within two minutes it's almost impossible for her to do without the rule or without a way it's impossible that one e mail she sent within two minutes is forwarded to her own e mail there have to be something on spot it's impossible for the plaintiff to leave the computer and for her to was so there were so many unknowns there is a lot of questions and that's why be we believe that when the lower court made the decision to dismiss it it shouldn't have  e mails from from a guy's house again your honor we have not determined or there is never an allegation that it was adulterous the e mails that were intercepted in itself did not explicitly or even imply that there is any adulterous relationship it's just shows that there were multiple email you're on a date then she looks because she is suspicious of the law should get involved in this kind of stuff nothing better for lawyers and judges to your honor first of all it is the law to protect well give me a reason or less that unless the laws asinine which it often is i'm afraid why are our judicial resources wasted so that a spouse can conceal embarrassing activities i assume you know adultery from from his wife what's the purpose of that the purpose of that is that the act twenty five eleven specifically i am asking for a reason for this statute is this a really dumb statute or is there some basis in common sense moral you it is a privacy recent yes i know but if murder if were if someone sends an email to another person saying let's go murder now do you think the right of privacy protects that email and i don't believe you on it that is exactly a precisely the way you know i should only reveal a crime in a number of states not in so if if the spouses monetary wife is monitoring her husband's emails for adultery why should that be protected activity because the law out los that that and even the vigil just says a lot but i'm asking for a reason for the law well if the spouse had doubted the husband's infidelity or anything such as she could confront and get the straight answer with a company cation if she suspects her husband it is not faithful and that's when you start filing for divorce proceedings but you don't bring it up on yourself to go  stated your honor although there was no adultery so conduct or expressions in the e mails that were exchanged we we are under the constitution protect it not only  for the criminal acts you know because you think the constitution protects all private communications even if there are criminal no i didn't see even if they're criminal that's why we have the law enforcement surveillance who can with probable cost and with the right warrant go search whatever they need to do to seize any criminal activity this was not a criminal activity other than an individual is entitled to their own privacy when they have passed controlled email accounts it could be misunderstood it could be that the words are not the same as a sometimes it's not what it appears that's why the communication is there in the relationship if the spouse either one of them  but it was not in this case it was not this is an act that under eighteen u s c twenty five eleven it says intentional interception of electronic communication is prohibited it punishable by law and a person has expectancy upright privacy expectancy under the law that they can resume their their conduct without the intrude intrusion of others not only your spouse but of the criminal violations right and even as such it's a very unusual use of the act because expectations of privacy are diminished this isn't a constitutional claim but the reason for the statute electronic privacy crisis less implicated between spouses i think is to the point of judge posner sign of questioning the fact is that there is no other case before this co protects everybody's individual civil liberties civil rights and if the law enforcement cannot enter into my computer or to my mailbox without the proper course neither can my wife  held that the anonymous informants trojan horse software where it grabbed the child molestation pictures and gave him to the government that was not interception rule on his supervisors e mail account well then that's a good reason to use the wiretap act there's personal privacy issues of play there's taxpayer privacy issues at play and the court upheld his conviction right on the allegation is identical here that the wife put an auto forward rule on her husband's computer so that she would receive all of his e mails and that's not the allegation or what that sorry exactly allegation in paragraph thirteen of the amended complaint but the exhibits exhibits not the exhibits don't don't resolve this question one way or the other as i think it's a limited set of whatever it is she preserved and a pparently re forwarded some time after the intercept or call the court does not have to the court is not bound by the plaintiff's characterization of the case right the point is that we can't characterize those exhibits one way or the other the head of our taking some discovery that the district court just made a conclusion from the exhibits that there was no contemporaneous capture and we just don't know that well said it's don't demonstrate that conclusively they just show that at some point she got the e mails presumably at the time that they were transmitted because the allegation is that she set up this auto forward rule and we have to accept that is true so if we accept as true that she set up the auto forward rule then the sin cave which case applies because that case says that the contemporaneous capture or intercept by any definition and the fact that she's got printouts that show that at some point after whether two minutes three hours three days three months two years after she forwarded them to herself at a different email address and save them in a file doesn't conclusively resolve whether there's been an interim intercept here and i said that without discovery i submitted it i submit that it does conclusively resolve for two reasons first plaintiff the not oppose argument in a motion to dismiss response and his motion to dismiss response that the e mails were not forwarded contemporaneously if you don't oppose a motion to dismiss argument you forever waive the opposition that are they did not say in their motion to dismiss responsibly for march fifth of this year that the emails were not contemporaneously intercepted so there's a waiver right there judge durgan had nothing else to go on all you had to go on were the exhibits to the complaint and that's the second reason for my to scream your honor is that the eat every single email shows to from date subject of when it was originally sent to or from mr epstein's account that it has the two from date of the forward to subsequent forward by necessity that's the email lays it out each email lays that out i don't think you can draw any firm or accurate conclusions based on the printouts and we have to read the printouts in the context of the allegation that she went on his computer and set up this auto forward well i guess i do disagree that the e mails don't say that themselves but this brings me back to my first point is that judge durkin had nothing else to go on then in the hands of the allegation in the complaint well that what the emails themselves when i said in my opening brief what they distinguished from muskets and their response is my point they didn't side with approval because so much of it said the auto forwarding from the i r s agents i'm sorry for the i r s agents supervisors account to the agents account that was contemporaneous by any standard so i'll grant you that the seventh circuit probably stopped short of adopting formally adopting the contemporaneity requirement as it as did the other cases right but judge  brooks said that that's contemporaneous by any standard the agent gets a copy at the same time as the supervisor that's contemporaneous by any standard also it pinpoint page seventy four if must of it's judged posed i'm sorry yes the email was caught in flight the email was duplicated at the kansas city server the irises kansas city server so it was caught in flight that's the same definition that steiger gave contemporaneous interception ten years earlier nine eight nine years earlier so while there was no formal adoption i'll grant you i believe that there was the inclination that e mails have to be intercepted she hasn't been deposed on that question i know i'm running the risk of disagreeing with your honor again but i believe the emails do show that and they were silent and then the opposition oh so you're just relying on the attached emails you're not relying on any other evidence i'm relying on the exhibits because they control over the bottom line yeah and the and the emails themselves which we said in our motion and judged her in front of the sponsor with not a word from platinum otherwise but  had a case if he thought he had a claim why run to court and plead is something when you don't have a better grasp of what happened he could have gone on to his computer and found out exactly what she thought she did she get a hired any number of these forensic guys that you know he could have figured out what happened but instead he ran to federal court with the purpose i think of blowing up the divorce trial which he was to start two weeks later and which did you know  not contemporaneously intercepted and the fact and just the fact that the emails themselves i believe show the initial transmission in the forwarding to which are chasms apart complaint in his complaint i'm sorry they're only relying on obscene my time is running short ok they're only relying on gaps in the bates numbering anybody's practice long enough knows that gas and the gaps in the base numbering doesn't mean concealment it just means that the staff or the litigation service just skipped a few numbers they allege that they were all the e mails he's in control of his email inbox he's going to be in control of his email and requirements and of course if the court determines to agree with with that position then there's nothing more to talk about with respect to mr franken the plaintiff doesn't contest that there has to be an interception under section one a for there to be any disclosure or use liability against mr frank but the discussion that we've had so far today that the court of has shown some of its thoughts  frank because there's there's an independent basis even if there is an interception to uphold the dismissal it has to mr frank the just of the use and disclosure own production request so there she is she's got sort of a new cast and a new theory of the disclosure idea in this court which wasn't raised in the but i don't know whether is implausible i don't know that it's implausible necessarily router but it does seem to me that in defending the the point that i raised in my response which was are so you've now complying with this discovery request so it seems to me that even if it's not implausible to say that perhaps a paralegal or a secretary may have stamped those base numbers and whether that constitutes disclosure or the disclosure that's contemplated by the statute possibly is a matter for debate but it certainly seems to me that the quote unquote disclosure or the disclosure theory plaintiff is advancing now is is also part and parcel of the response to the plaintiffs production request so again all we were doing was complying with the pla request for producing the documents to put in his own counsel so it's in the nature of disclosure it's consent yes or even beyond consent it seems to me it's it was required for mr frank and his client to comply with the illinois discovery rules it's required for mr frank to comply with all the rules that apply to attorneys practicing law in the state of illinois he can't withhold think is something along the lines of her counsel mr frank was using these e mails first of all you know asking her to turn him over to the financial settlement that's what i understand the use theory to be there's absolutely no fair excluded that support that theory if the court looks at the amended complaint if the court even look at the description of the new you series that's that the court or that the plaintiff presented to this court that the plaintiff did not present in the district court there aren't fact that here are the facts that attributed to mr frank where the questioner said well gee you know can i do something with knowledge of my my husband's infidelity in a divorce situation and mr frank said well it doesn't you know he gave a general answer as to what possibly could be done which is not much with that kind of information and to take the at and say that that's a leap to this is definitely what his litigation strategy was i think is quite implausible well there allegation that says that there was any kind of negotiations going on and when if the court looks at the plaintiffs in all that may be something for summary judgment here on the pleadings but even on the pleadings your honor look at the plaintiff's response in the district court the pla the plaintiff responded without any equivocation in the district court to the motion to dismiss by saying well it was intended to be used it was intended to be used and that's what the argument was it was pretty presented to the district court judge and he said well there's nothing in the statute about an intent to use later it's either use or endeavor to use and so that was the pla 's own position and now we have and that didn't work so now in this court there's a there's a contradiction of that and i don't think that's appropriate it's not appropriate even under the morris the the liberal pleading standards of the court in the six situation and i will just briefly also mention because i know my time is up that we also hear of a heightened knowledge requirement with respect to the knowledge of news and where we're is where is the allegation  that mr frank you it's pretty heightened standard it's knows that it's intercepted knows it's an intercepted electronic transmission and beyond that he has factual information showing that it was an illegal transmit and legal interception and there is not one whit of to of allegations that supports their conclusion thank you very misled first i would like to clarify we got off of our topic when you judge pos in our stated the moral grounds for what's the violation what's the damage we're not here because at the twelfth six motion to dismiss in a district court where it's notice pleading we didn't have discovery we are here at that we believe that it was improperly dismissed and we didn't have a chance for discovery and i just want to make that clear and if you had the trial the statute is good and as we see from and the statute there was a violation and there is this statute but the procedural mistake is what we are here for then and before  i want to touch as fast as i can through it when the counsel explained that mr epstein could have done his own investigation before running to the courts well to do that you do need the computer of the individual who has intercepted this mail she was already moved out the computer is not here but now when his own computer shows whether or not the auto forward functionality had been that function well there was not sufficient discovery but even if it was a computer if we had received the discovery to have our examiner go check it out we probably get your own clients computer me discovery for that but we don't know if it's all you need to do is have a computer geek come in and tell you what's in there again we believe that is not at issue here as i stated we are here for the procedural grounds and with regards to the counsel stating that i have waived my arguments because i didn't say anything well you can only say so much in in i'm pleading and we believe it is well settled in the seventh circuit then when reviewing th motion lower court or higher court that we can address these issues even if we hadn't addressed it before it procedurally it would be correct with regards to the allegation of j frank's use or  a disclosure of it first there was no proper procedure criminal law one on one tells you or your clients previous or prior crimes you can you cannot you have to conceal it you cannot take the fruits of that illegal act and use it as a tourney for even in criminal cases you know that you cannot use the fruits of the poisonous tree so to speak and also with the contemporaneous as they have stated the language itself does not provide that it requires even though we are here for the procedural aspect but i believe just to mention the act itself does not require contemporaneous the congress did not intend that that it includes let me go with the intent of the i'm running out the time i apologize there or to report that they relied on state it specifically that e mail communication could be intercepted that were intercept interception maybe is not exactly correct because that's the judicial interpretation of it because the intercept was defined in itself intercepted while being premeditated because when you played with the e mails it's only seconds when you press the button there is it's impossible with the webster dictionary or the textbook definition to intercept an electronic e mail when you just press the button and then it starts copying going to different routes and estimates in ski case identify it's it's stated there could be other issues why there could be a minute or two