Electronic Discovery Law

Garcia v. City of Laredo, ---F.3d---, 2012 WL 6176479 (5th Cir. Dec. 12, 2012)

On appeal, the Fifth Circuit affirmed the district court’s interpretation of the Stored Communications Act (“SCA”) and concluded that it does not apply to data stored in a personal cell phone.

Plaintiff was previously employed as a police dispatcher for the City of Laredo.  On November 15, 2008, Plaintiff’s cell phone was removed from her unlocked locker by an officer’s wife who then shared its contents with the city’s deputy assistant city manger and the interim/assistant police chief because she believed that she had discovered evidence of Plaintiff’s violations of department policy.  Later, investigators successfully downloaded one video recording and more than thirty digital images from Plaintiff’s phone, but were unable to download text messages.  Following further investigation it was determined that Plaintiff had violated department rules and regulations and she was terminated from her employment.

Litigation ensued and the district court ultimately granted summary judgment for Defendants and “denied [Plaintiff’s] motion for partial summary judgment on the Stored Communications Act, finding that the statute did not apply to Defendants’ actions in this case.”  Plaintiff appealed.

On appeal the circuit court concluded, after identifying the relevant portion of the statute, that “for Defendants to be liable under the SCA, they must have gained unauthorized access to a facility through which electronic communication services are provided (or the access must have exceeded the scope of authority given) and must thereby have accessed electronic communications while in storage.”  Plaintiff argued that her cell phone was “a ‘facility’ in which electronic communication is kept in electronic storage in the form of text messages and pictures stored on the cell phone.”

Following brief discussion of the statutory definitions of “electronic communication service” and “electronic storage,” the court turned to discussion of the holdings of other courts who have addressed similar issues and first noted that courts have interpreted the statute to apply to “providers of a communication service such as telephone companies, Internet or email service providers, and bulletin board services.”  The court went on to discuss an Eleventh Circuit case in which the court held that a hacker’s conduct in accessing an individual’s hard drive to obtain information saved there was “beyond the reach of the SCA” and also recognized that several district courts have concluded that “the relevant ‘facilities' that the SCA is designed to protect are not computers that enable the use of an electronic communication service, but instead are facilities that are operated by electronic communication service providers and used to store and maintain electronic storage.”  Other resources supporting this interpretation were also discussed.

Moreover, the court reasoned that even if the cell phone was somehow considered a facility, that “stop[ped] short” of demonstrating that the phone’s storage of text messages, etc. fit within the statute’s definition of “electronic storage,” which, “as defined encompasses only the information that has been stored by an electronic communication service provider.,” e.g. “information that an Internet provider stores to its servers or information stored with a telephone company—if such information is stored temporarily pending delivery or for purposes of backup protection . . . .”  Information stored by an individual on their hard drive or cell phone “is not in electronic storage under the statute.”

The court concluded:

An individual's personal cell phone does not provide an electronic communication service just because the device enables use of electronic communication services, and there is no evidence here that the Defendants ever obtained any information from the cellular company or network.  Accordingly, the text messages and photos stored on Garcia's phone are not in “electronic storage” as defined by the SCA and are thus outside the scope of the statute.

A full copy of the court’s opinion is available here.