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In re Subpoena Duces Tecum to AOL, LLC

Civ. No. 1:07mc34 (GBL) (E.D. Va., April 18, 2008)

Affirming the decision of the Magistrate Judge, the District Court quashed a subpoena issued by State Farm Fire and Casualty Co. (“State Farm”) to AOL, seeking disclosure of the stored emails of two of its customers.  The Court held such disclosure prohibited by the Electronic Communications Privacy Act, 18 U.S.C. Section 2702, which prohibits Internet Service Providers such as AOL, in the absence of express authorization by the statute, from divulging the contents of customers’ electronic communications.  Notably, the Court held that the receipt of a civil subpoena does not, by itself, authorize the ISP’s disclosure of such materials under the ECPA. 

The Court further upheld the Magistrate’s decision to quash the subpoena because it imposed an undue burden on the account holders, was not appropriately limited to communications pertaining to the lawsuit in question, and arguably sought discovery of privileged communications, the propriety of which assertion the Court deferred for ruling by the court in which the underlying dispute for which the discovery was sought was being litigated.

The materials sought by State Farm were stored in email accounts maintained by Cori and Kerri Rigsby with AOL.  According to State Farm, the Rigsbys had stolen confidential documents from a State Farm laptop, which they had forwarded to their AOL accounts, and provided to an attorney, who had purportedly used the same to file lawsuits including an action entitled McIntosh v. State Farm.  The Rigsbys claimed they had “discovered what they believed to be fraud with respect to State Farm’s treatment of [the] McIntosh’s Hurricane Katrina damage claim.”  More particularly, the Rigsbys, who had been employed as insurance adjusters, alleged that “State Farm defrauded the United States government by improperly shifting costs from State Farm’s wind damage coverage to the federal flood insurance program.”  As a result, the Rigsbys commenced a quai tam action against State Farm.

In the McIntosh action, the court ordered the Rigsbys to produce so much of the documents State Farm sought which were in their actual or constructive control.  Apparently, the Rigsbys did not produce some of the documents sought as a result of a claimed computer ‘crash.’  As a result, State Farm served a subpoena on AOL, to obtain discovery from the Rigsbys’ email accounts.

Affirming the decision of the Magistrate, the District Court held that AOL was prohibited from disclosing the materials sought by application of the Electronic Communications Privacy Act, and particularly 18 USC Section 2702 thereof.  According to the Court, “section 2702 plainly prohibits an electronic communication or remote computer service … from knowingly divulging to any person or entity the contents of customers electronic communications or records pertaining to subscribing customers” unless such disclosure is authorized by other provisions of the ECPA.  The issuance of a subpoena in a civil action, standing alone, did not trigger such authorization.  The Court stated:

Applying the clear and unambiguous language of Section 2702 to this case, AOL, a corporation that provides electronic communication services to the public, may not divulge the contents of the Rigsbys’ electronic communications to State Farm because the statutory language of the Privacy Act does not include an exception for the disclosure of electronic communications pursuant to civil discovery subpoenas.  …  the Court finds that the Privacy Act protects the Rigsbys’ stored emails because the Rigsbys have a legitimate interest in the confidentiality of their personal emails being stored electronically by AOL.  Agreeing with the reasoning in O’Grady, this Court holds that State Farm’s subpoena may not be enforced consistent with the plain language of the Privacy Act because the exceptions enumerated in Section 2702(b) do not include civil discovery subpoenas.

In reaching this result, the Court relied upon the Courts’ decisions in O’Grady v. Superior Court, 44 Cal. Rptr. 3d 72 (Cal. Ct. App. 2006) and Theofel v. Farey-Jones, 359 F.3d 1066 (9th Cir. 2004).

The Court further held that State Farm’s subpoena should  be quashed because it was overbroad and imposed an undue burden on the Rigsbys because it requested all of the Rigsbys’ emails over a six week period.  The subpoena was overbroad because it did not limit the emails requested to those containing subject matter relevant to the underlying litigation.  The subpoena imposed an undue burden on the Rigsbys because the request for all emails sent over a six week period would likely include privileged and personal information unrelated to the subject litigation.

Lastly, the Court upheld the subpoena because it arguably sought the production of materials protected by the attorney-client privilege, a question the Court held was better determined by the court in which the subject litigation was pending, based on its familiarity with the claims asserted therein.  The Court reached this result notwithstanding the fact that the Rigsbys failed to produce a privilege log, identifying the emails which they claimed were privileged, or even to assert more than that their email accounts “likely contain[ed]” privileged communications.

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