“Persnickety, Persistent” Questions: The Stored Communications Act

The Stored Communications Act (“SCA”) prohibits internet service providers from disclosing the “content” of electronic communications. What constitutes “content” of an electronic communication? It may be easier to rephrase the question: What doesn’t constitute content? According to the U.S. District Court for the Northern District of California, the answer is: very little.

Optiver Australia Pty. Ltd. & Anor. v. Tibra Trading Pty. Ltd. & Ors., 12-cv-80242 (N.D. Cal., Jan. 23, 2013), involved a subpoena issued by the plaintiff to Google in connection with a foreign action in Australia. The plaintiff sought information regarding a number of its adversary’s emails for a two year period, including recipient, sender, subject, the dates sent, received, read and deleted, and attachments for emails that contain certain terms relevant to the case.

The defendant moved to quash and the Court granted the motion, in part. In doing so, the Court relied on the broad definition of “content” under the SCA, defined as “any information concerning the substance, purport or meaning of that communication.” The Court interpreted this to prohibit disclosure of content-related information, “no matter how insignificant.”

As noted by the Court, the use of search terms would necessarily reveal that the emails contained those terms, and thus qualified as “content.” Likewise, disclosure of an email subject line would reveal information about the substance of the email. The Court did order Google to produce “non-content” metadata, but commented that such information would likely be useless to the plaintiff in prosecution of its claims.

This is not the first case where the SCA has stymied efforts to obtain email communications directly from service providers. The well known Crispin case involved a similar situation. Perhaps the most important take-away from these cases is that a party seeking electronic communications might avoid the pitfalls of the SCA altogether by requesting the communications directly from the adversary, who would be considered to have custody or control over those communications by virtue of its ability to obtain them from the service provider. This would allow a party requesting electronic communications to steer clear from the “persnickety, persistent” questions addressed by the Court in Optiver.

Paul E. Asfendis is a Director in the Gibbons Products Liability Department and a member of the Gibbons E-Discovery Task Force.
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