Continuing tort doctrine doesn't toll statute in wiretap case.

Byline: Eric T. Berkman

The three-year statute of limitations for a man's claims that his employer violated state wiretap and computer crime statutes by putting tracking software on his work computer without his knowledge was not tolled by the discovery rule or the continuing violation doctrine, the Rhode Island Supreme Court has determined.

Defendant Automatic Temperature Controls installed the software on plaintiff Jason Boudreau's work computer in spring 2011. The software allegedly revealed that Boudreau possessed child pornography.

Automatic Temperature Controls notified the police, leading to the plaintiff's June 2011 arrest and termination.

Boudreau, who allegedly first learned of the software at a January 2012 unemployment hearing, sued the company, its president and its IT manager in federal court in 2013. That case was dismissed on summary judgment.

Then, in August 2016, Boudreau brought state law claims against the defendants in Superior Court, alleging that the use of the software violated the Rhode Island Wiretap Act, Rhode Island Computer Crime Act, and Rhode Island Software Fraud Act among other claims. A Superior Court judge dismissed the claims under G.L. 1956 9-1-14(b), the three-year statute of limitations for personal injury claims.

On appeal, Boudreau argued that the statute should have been tolled by the discovery rule because he did not learn the name, functions and configurations of the software until after August 2013. He also asserted that the continuing violation doctrine should have tolled the statute because Automatic Temperature Controls continued to unlawfully use the data from the tracking software in the course of defending against Boudreau's claims.

But the Supreme Court disagreed.

"We are of the opinion that the discovery rule is not applicable to plaintiff's computer crime claims under the circumstances of this case," Justice Francis X. Flaherty wrote for the court. "We are satisfied that plaintiff knew of his alleged injury underlying his computer crime claims at the time he was arrested on child pornography charges, shortly after the police searched his work computer. However, even assuming that the discovery rule was applicable to plaintiff's computer crime claims, it is our opinion that the latest a reasonable person would have discovered such a cause of action against ATC was at plaintiff's unemployment hearing, which took place on January 24, 2012."

Regarding the plaintiff's assertion of the...

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