A decision last fall by a California appellate court, Negro v. Superior Court of Santa Clara County, 230 Cal. App. 4th 879 (2014), has important implications for litigants seeking discovery of electronic communications sent or received by opposing parties. The court held that the federal Stored Communications Act (“SCA”) does not provide a basis for an electronic communications service provider to refuse to produce a user’s e-mails or other stored electronic communications in response to a subpoena, so long as (i) a litigant has obtained a court order directing an opposing party to give its consent to its service provider’s disclosure of such communications, and (ii) the party has complied with the court order by providing its consent.
In Negro, a former corporate officer and his e-mail provider, Google, sought to quash a subpoena served on Google by the individual’s former employer. The subpoena sought e-mails the former officer had sent and received through his Gmail account. The former officer and Google based their motion on the SCA, which prohibits service providers from disclosing stored electronic communications except under specified circumstances, including where the user has consented to such disclosure. Rejecting the motion to quash, the California court held that the former officer’s consent to Google’s disclosure of his e-mails was valid, even though the consent had been mandated by an order of a different court. As a result, the court directed Google to produce the e-mails.
In light of the Negro decision and similar holdings by other courts, litigants should take note of their ability to secure relevant e-mails and other electronic communications from a party’s service provider through an appropriate court order, notwithstanding the provisions of the SCA.
The plaintiff, Navalimpianti USA, Inc. (“Navalimpianti”), brought suit in a Florida state court against a former officer of the company, Matteo Negro, and other former employees of the company, alleging that they had committed numerous torts in the course of leaving Navalimpianti to start a competing business. After filing its complaint, Navalimpianti served document requests on Negro and the other defendants, seeking communications between the defendants during the time of the alleged misconduct, including electronic communications from Negro’s Google e-mail account, which Negro admitted he had used to communicate with his co-defendants during the relevant timeframe. In response to the document requests, none of the defendants produced e-mails from Negro’s Google account, instead asserting that they had deleted all such e-mails.
Since Negro and his co-defendants failed to produce the requested electronic communications, Navalimpianti asked the Florida court for an order authorizing the issuance of a subpoena in California compelling Google to produce the requested e-mails. While Negro objected to this request, the Florida court overruled Negro’s objections and entered an order authorizing Navalimpianti to have the requested subpoena issue in California, where Google is located.
After Navalimpianti served the subpoena on Google in California, Negro filed a petition with the California Superior Court asking it to quash the subpoena. Both Negro and Google objected to the subpoena, claiming that disclosure of Negro’s e-mails was not authorized by the “consent” provision of the SCA. Under the SCA, an electronic communications service provider is prohibited from “knowingly divulg[ing]” stored electronic communications unless an exception applies, including when a user has given his or her “lawful consent” to disclosure.
In response to the objections to the subpoena in the California proceedings, Navalimpianti filed a motion in Florida asking the court to order Negro to consent to the disclosure of the Google e-mails. The Florida court referred the motion to a magistrate judge, who issued a non-binding recommendation that the relief be denied because the discovery of the Google e-mails was now within the jurisdiction of the California court. Navalimpianti filed exceptions to the magistrate judge’s recommendation and asked the Florida court to instead issue an order requiring Negro to deliver a consent to Google that would satisfy the requirements of the SCA.
While the motion to consent was still pending in Florida, a California Superior Court judge rejected Negro and Google’s objections to the subpoena, ruling that even though Negro had not consented to Google’s disclosure of his e-mails, the Florida court’s power to order Negro to provide consent constituted “constructive consent” to their disclosure. Negro then appealed the California Superior Court’s ruling.
Shortly thereafter, but prior to Negro’s appeal being heard in California, the Florida court overruled the magistrate judge’s recommendation and granted Navalimpianti’s motion for an order directing Negro to consent to the disclosure. Negro then complied with this order by sending Google an e-mail consenting to the disclosure of the subpoenaed materials.
California Court’s Decision
Even though he had complied with the Florida court’s order to provide his consent to Google, Negro argued in his appeal to the California appellate court that this consent did not constitute “lawful consent” under the SCA because it was “judicially coerced.” Google likewise resisted production of the e-mails, arguing that the consent exception in the SCA allows a service provider to decide whether or not to produce stored electronic communications in response to a subpoena, even after a user has given his or her consent to such disclosure.
The California appellate court rejected Negro and Google’s arguments and directed Google to produce the requested e-mails. Although the appellate court disagreed with the Superior Court’s “constructive consent” theory, it noted that, after the lower court’s decision had been issued, Negro had given Google his express consent to produce the e-mails. Further, the court held that Negro’s consent was “lawful” under the SCA even though it had been compelled by the Florida court under threat of sanctions for non-compliance. In support of this conclusion, the court noted that courts commonly compel litigants to give their consent to the disclosure of other sensitive but relevant materials, such as medical and bank records.
Finally, the appellate court likewise rejected Google’s objections, concluding that once Negro had given his consent to disclosure of the e-mails, nothing in the language of the SCA permitted Google to decide whether to comply with the subpoena.
Decisions By Other Courts
While there is little reported case law on the matter, other courts have issued decisions that are consistent with the Negro ruling. In particular, federal district courts in Kansas, Michigan, and New York have likewise ruled that a court can compel a party to give its consent under the SCA to a service provider’s disclosure of relevant electronic communications.
Specifically, in Al Noaimi v. Zaid, No. 11-1156-EFM, 2012 WL 4758048 (D. Kan. Oct. 5, 2012), a Kansas federal district court ruled that it had authority to require a party to execute a consent permitting disclosure of his e-mails by his service provider. In Flagg v. City of Detroit, 252 F.R.D. 346 (E.D. Mich. 2008), a Michigan federal district court similarly directed a party to provide consent under the SCA to permit a service provider to produce stored text messages. Likewise, in Glazer v. Fireman’s Fund Ins. Co., No. 11-Civ-4374(PGG)(FM), 2012 WL 1197167 (S.D.N.Y. Apr. 5, 2012), a New York federal district court held that it had authority to direct a party to consent to a service provider’s disclosure of online chats.
Thus, while court-ordered consent under the SCA is an emerging area of the law, the Negro decision is in line with other decisions recognizing courts’ authority to compel parties to give consent to service providers’ disclosure of electronic communications.
Implications And Recommendations For Litigants
While the specific procedures to be followed may vary somewhat from state to state, the Negro ruling and similar court decisions provide a useful roadmap to litigants seeking e-mails or other electronic communications stored by an opposing party’s service providers.
As a first step, a litigant’s discovery requests to opposing parties should request production of all relevant e-mails and other electronically stored communications. Discovery rules establish that a party must produce such documents insofar as they are within its possession, custody, or control.
Second, if an opposing party asserts that it no longer has possession of requested electronic communications (presumably because it deleted them and did not retain hard copies), the litigant should request a court order compelling the opposing party to give consent to the disclosure of such electronic communications by its service providers.
Third, once an appropriate consent order has been obtained, and the opposing party has provided the necessary consents to its electronic communications service providers, the litigant should either issue subpoenas to the service providers or request that the opposing party be directed to obtain the relevant communications from its service providers and then produce them.
Finally, if the opposing party fails to provide consent once ordered to do so by the court, or if a service provider refuses to produce the requested communications even after receiving the necessary consent, a litigant may seek appropriate sanctions, including monetary penalties and/or a default judgment.
By following these steps, a litigant may maximize its prospects for efficiently obtaining relevant electronic communications stored by an opposing party’s service provider.
A previous version of this article appeared in New England In House (“NEIH”). The Firm is grateful to NEIH for its support in publishing this article.