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Avoiding Question of Whether Third-Party’s Compliance with Subpoena Might Violate Stored Communications Act, Court Instructs Plaintiff to Serve Rule 34 Request for Production Instead

Posted in CASE SUMMARIES

Flagg v. City of Detroit, 252 F.R.D. 346 (E.D. Mich. 2008)

In an earlier decision in this case, the court denied defendants’ motion to quash subpoenas to SkyTel for the production of text messages.  The court found that plaintiff was entitled to pursue the production of certain text messages sent or received by specified officials or employees of the City (some of whom were also named as individual defendants in the suit) during specified time frames, using text messaging devices supplied by SkyTel.  The court observed that the relevance (and hence discoverability) of the text messages necessarily turned upon the content of the communications.  Thus, it was essential to establish a procedure for the review of the content of each such communication, for determining both relevance and the application of any privilege.  The court appointed two magistrate judges to review the communications and make the initial determination as to which were discoverable.  Our post on that March 20, 2008 order is available here.

In this recent decision, the court ruled upon motions by the City and one of the individual defendants seeking to prevent the discovery from going forward.  The moving defendants argued that the federal Stored Communications Act (“SCA”), 18 U.S .C. § 2701 et seq., wholly precludes the production in civil litigation of electronic communications stored by a non-party service provider.  The court rejected this proposed reading of the SCA, observing that “[d]efendants’ position, if accepted, would dramatically alter discovery practice, in a manner clearly not contemplated by the existing rules or law, by permitting a party to defeat the production of electronically stored information created by that party and still within its control – information that plainly is subject to civil discovery, see Fed. R. Civ. P. 34(a)(1) – through the simple expedient of storing it with a third party.”  The court concluded that, because nothing in the plain language of the SCA requires this extraordinary result, and because defendants had not identified any other support for this proposition, the discovery effort contemplated in its March 20, 2008 opinion could go forward (albeit through slightly different means).

The court first surveyed the SCA provisions that defendants contended were pertinent.  It noted that the SCA generally prohibits – subject to certain exceptions – a “person or entity providing an electronic communication service to the public” from “knowingly divulg[ing] to any person or entity the contents of a communication while in electronic storage by that service.”  18 U.S.C. § 2702(a)(1).  It further prohibits – again, subject to certain exceptions – a “person or entity providing remote computing service to the public” from “knowingly divulg[ing] to any person or entity the contents of any communication which is carried or maintained on that service.”  18 U.S.C. § 2702(a)(2).  The prohibitions set forth in § 2702(a) govern service providers to the extent that they offer either of two types of services:  an “electronic communications service” or a “remote computing service.”  The provider of an RCS may divulge the contents of a communication with the “lawful consent” of the subscriber to the service, while the provider of an ECS may divulge such a communication only with the “lawful consent of the originator or an addressee or intended recipient of such communication.”  The court further observed that § 2702 lacks any language that explicitly authorizes a service provider to divulge the contents of a communication pursuant to a subpoena or court order.

Although plaintiff had chosen third-party subpoenas as the vehicle for seeking the production of SkyTel text messages, the court analyzed the issue of whether plaintiff could have achieved the same objective through an ordinary Fed. R. Civ. P. 34 request for production directed at the City.  The court observed that a request for production need not be confined to documents in a party’s possession, but instead may properly extend to items that are in that party’s “control.”  It noted that the City’s motion was premised upon such control, in that it first asserted that the City had the ability to consent to SkyTel’s production of the text messages at issue, but then stating that it was unwilling to do so.  The court continued:

Yet, if the City can block the disclosure of SkyTel messages by withholding its consent, it surely follows that it can permit the disclosure of these communications by granting its consent.  This acknowledged power readily qualifies as a “legal right to obtain” the messages held by SkyTel, and hence constitutes “control” within the meaning of Rule 34(a)(1).

The court thus concluded that the text messages maintained by SkyTel would be an appropriate subject of a Rule 34 request for production directed at the City.  Having found that production through a Rule 34 document request without violating the SCA, the court avoided the more difficult question of whether the same holds true where such disclosure would be via a third-party subpoena and instructed plaintiff to serve a Rule 34 request for production:

Finally, the Court returns to the premise under which it has conducted its SCA analysis – namely, that Plaintiff has sought the disclosure of SkyTel text messages via a Rule 34 request for production, as opposed to a third-party subpoena.  As this premise is incorrect, the Court necessarily must address the legal significance of Plaintiff’s election to proceed via the latter means of discovery.  The question, in particular, is whether the Court’s analysis and conclusions continue to hold true where production is sought directly from a non-party, rather than from a party that retains control over materials in the nonparty’s possession.

The Court finds it best to avoid this question, and to instead insist that Plaintiff reformulate his third-party subpoena as a Rule 34 request for production directed at the Defendant City.  If Plaintiff were to continue to proceed via a third-party subpoena, it seems apparent that SkyTel’s compliance would qualify as “divulg[ing]” the contents of communications within the meaning of § 2702(a), and that, as Defendants have argued, this disclosure could only be made with the “lawful consent” referred to in § 2702(b)(3).  Moreover, while Rule 34 and its attendant case law provide clear authority for insisting that a party consent to the disclosure of materials within its control, there is very little case law that confirms the power of a court to compel a party’s consent to the disclosure of materials pursuant to a third-party subpoena.

In an effort to avoid such potentially difficult questions where a more straightforward path is readily available, the Court instructs Plaintiff to prepare and serve a Rule 34 request for production of the relevant text messages maintained by SkyTel on behalf of the Defendant City.  The City shall then forward this discovery request to SkyTel, and SkyTel, in turn, shall proceed in accordance with the protocol set forth in the Court’s March 20, 2008 order.  By directing the parties to proceed in this manner, the Court obviates the need to determine what powers it might possess to compel a service provider such as SkyTel to comply with a third-party subpoena, and the Court leaves this question for another day.  Rather, because production will be sought under Rule 34, the Court may resort to the usual mechanisms for ensuring the parties’ compliance.