eDiscovery Issue: SCA Prohibits Searching Google Email
Newspapers these days are full of articles, both factual and conspiracy-laden, about how various email service providers (Google always manages a prominent mention) freely and frequently disclose our private electronic data to federal investigators. Perhaps this is appropriate in some cases, but parties should know that a very different standard, affirmed in a recent California case, applies to private litigants. That court wrote, in its opinion denying most of the discovery sought, “The Stored Communications Act (SCA) offers broad protection against disclosure of content by service providers.” After obtaining discovery, Optiver contended that Tibra’s disclosures were incomplete and sought discovery in U.S. courts. Optiver specifically wanted to see whether Tibra sent emails using PGP encryption, which wasn’t used within the company and would suggest foul play.
Optiver subpoenaed Google, the email custodian, for three different items. First, it wanted emails from Tibra employees that contained the terms “PGP” or “Optiver.” The ourt denied this request based on the text of the SCA, which prevents it from disclosing electronic “content,” defined as “any information concerning the substance, purport, or meaning of that communication.” Second, Optiver sought and was denied access to the subject lines of emails for the same reason. Last, Optiver sought and recieved “non-content metadata” that might reflect when Tibra created the accounts and used them rather than reflecting the emails’ substance. Given the denial of the first two requests, the court was dismissive in allowing the relief. However, it is worth asking why the date of an account’s creation and certain other metadata—take for instance, the timing of when Tibra sent most emails; late at night could suggest foul play — are not protected similarly.
This case follows many others that prevent litigants from doing an end-around by subpoenaing a service provider, though any good litigator will tell you the truth often only emerges through multisourced discovery. Accordingly, litigants are well positioned when they focus your efforts on thorough discovery protocols and disclosures in the earliest possible stages of litigation.