Justices Agree on Unlawful Subpoena of Emails

Rhett Pardon
WASHINGTON — In a victory for electronic privacy, the U.S. Supreme Court declined to rehear a lower court decision involving a subpoena of emails in a commercial litigation case.

Justices agreed with a February decision from the 9th U.S. Circuit Court of Appeals, holding that a civil litigant's subpoena seeking "all copies of e-mails sent or received by anyone" from an Internet service provider's computers, without limitation as to time or subject matter, was patently unlawful.

In the earlier decision, the 9th Circuit found that plaintiffs whose private email messages were disclosed could sue the defendant who issued the subpoena and his lawyer under the federal Stored Communications Act and the Computer Fraud and Abuse Act.

The court also held that the defendant’s access to the emails was “unauthorized” under both statutes even though the defendant’s attorneys obtained the emails by subpoena. Further, the 9th Circuit found that the federal Wiretap Act does not apply to such a case because it does not cover stored emails.

The case involved plaintiffs Douglas Wolf and Richard Buckingham, officers of Integrated Capital Associates Inc., who were embroiled in a suit against Alwyn Farey-Jones.

In the course of discovery, Farey-Jones sought access to ICA’s email, requesting his lawyer Iryna Kwasny to subpoena NetGate, ICA’s ISP.

Under federal rules, Kwasny was supposed to “take reasonable steps to avoid imposing undue burden or expense” on NetGate.

But Kwasny ordered production of “[A]ll copies of emails sent or received by anyone” at ICA, with no limitation as to time or scope.

NetGate, which was not represented by counsel, explained that the amount of email covered by the subpoena was substantial. But, according to the court, Farey-Jones did not relent.

The court said that NetGate then took what might be described as the “Baskin-Robbins” approach to subpoena compliance and offered defendants a “free sample” consisting of 339 messages.

It posted copies of the messages to a NetGate website where, without notifying opposing attorneys, Kwasny and Farey-Jones read them. Most were unrelated to the litigation, and many were privileged or personal, the court said.

When Wolf and Buckingham found out what had happened, they asked the court to quash the subpoena and award sanctions.

A lower court judge “soundly roasted” Farey-Jones and Kwasny for their conduct, finding that “the subpoena, on its face, was massively overbroad” and “patently unlawful,” that it “transparently and egregiously” violated the federal rules, and that defendants “acted in bad faith” and showed “at least gross negligence in the crafting of the subpoena.”

The judge granted the motion to quash and socked defendants with more than $9,000 in sanctions to cover Wolf and Buckingham’s legal fees.

While Farey-Jones did not appeal that award, Wolf, Buckingham and other ICA employees whose email was included in the sample filed a civil suit against Farey-Jones and Kwasny.

The ICA employees claimed that Farey-Jones and Kwasny violated the Stored Communications Act, the Wiretap Act, and the Computer Fraud and Abuse Act, as well as various state laws.

The lower court held that none of the federal statutes applied and declined jurisdiction over state law claims, but the 9th Circuit found otherwise on some of the counts.

But the San Francisco-based federal appeals court reversed the dismissal of the Stored Communications Act claim, affirmed dismissal of the Wiretap Act claim and reversed dismissal of the Computer Fraud and Abuse Act claim. The court also reversed the dismissal of the state claims.

The case is Farey-Jones vs. Theofel (Denial of Certiorari), No. 03-1565.