Law Of The Line

Bob Godbey

Last month we discussed how the courts are struggling with the scope of statutory protection of email. New clarifying legislation may be forthcoming. In the meantime, the Ninth Circuit has considered an interesting case in which a litigant and his attorney were both sued for improper email subpoenas, used in the discovery process, and has allowed the suit to go forward.

Alwyn Farey-Jones was in commercial litigation in New York with Integrated Capital Associates (ICA). He and his lawyer subpoenaed "all copies of emails sent or received by anyone" at ICA from ICA's Internet Service Provider. The ISP, apparently not represented by counsel, gave them access to a sample of such emails, most of which were unrelated to the litigation, and many that were privileged and personal. When the presiding judge learned of this, he quashed the subpoena as "massively overbroad" and "patently unlawful," and awarded sanctions. Various ICA employees then filed a separate suit in California against both Farey-Jones and his lawyer, alleging the overbroad subpoena violated the Stored Communications Act and other federal statutes.

The Stored Communications Act provides a cause of action against anyone who "intentionally accesses without authorization" a facility through which email is provided and thereby obtains access to the email while it is in electronic storage. The district court dismissed the case, reasoning that the ISP had authorized the access when it responded without objection to the subpoena. The Ninth Circuit reversed the decision, arguing that, "like the tort of trespass," the Act protects individuals' privacy and proprietary interests. After discussing a variety of trespass cases, the Ninth Circuit concluded that using an invalid subpoena to obtain the consent of the ISP was actionable: "The subpoena's falsity transformed the access from a bona fide state-sanctioned inspection into private snooping." And private snooping is trespass.

Thus, the Ninth Circuit held that the suit against Farey-Jones and his lawyer could go forward, and that the overly broad subpoena of email was in itself potentially a violation of the Stored Communications Act. This case is interesting not just because of its analysis of the law of email, but also because of its willingness to allow a suit against counsel for abuse of the discovery process.

Bob Godbey is a partner in the Honolulu law firm of Godbey Griffiths Reiss. A graduate of the Harvard Law School, he has degrees in electrical engineering and math. He welcomes comments through www.LawHI.com