Civil litigants are increasingly trying to get their hands on e-mails to prove their cases, but Internet service providers are starting to challenge their subpoenas -- and courts are starting to rule in their favor.
The range of litigants seeking e-mail content include divorcing couples, defamation victims and those involved in trade secrets disputes, say Internet and data-protection attorneys.
But the subpoenas are costly and upsetting to customers of Internet service providers who want privacy.
"For years, courts just assumed that e-mail was discoverable and viewable, and it looks to me like courts are changing direction and questioning that position," said Ted Claypoole of the Charlotte, N.C., office of Womble Carlyle Sandridge & Rice, who represents ISPs. "Most ISPs obviously want to protect their customers if they can, because their customers are who keep them in business," Claypoole said. "But more importantly, they need a clear-cut rule that tells them how they should behave." While not exactly a clear-cut rule, ISPs received a boost recently from the U.S. District Court for the Eastern District of Virginia, which denied a State Farm Mutual Automobile Insurance Co. subpoena asking AOL to disclose various e-mails tied to an insurance claim. The court held that the Stored Communications Act prohibits ISPs from disclosing e-mail contents in response to a civil subpoena. In re Subpoena Duces Tecum to AOL, 2008 WL 1956266 (E.D. Va.). Theodore Brenner of Brenner, Evans & Millman in Richmond, Va., who represented State Farm in the recent Virginia case, was unavailable for comment. The Stored Communications Act, created by Congress in 1986, protects the privacy of stored e-mails and dictates under what circumstances they can be disclosed. The act allows disclosure of e-mail contents in criminal cases, allowing prosecutors to access inboxes with a search warrant. But there are stricter requirements for civil litigants, who cannot obtain e-mails unless they must meet certain requirements, including consent of the e-mail subscriber, the sender of the message or the recipient. Attorneys said this was the first federal court to explicitly adopt the analysis of a 2006 California appeals court ruling, which prohibited computer maker Apple from obtaining e-mail contents from an ISP in a trade secrets case.O'Grady v. Superior Court, 44 Cal. Rptr. 3d 72 (Calif. 6th Ct. App. 2006). The subpoena sought production of e-mails that would permit Apple to identify who transmitted trade secrets information about an unreleased Apple product to a blog. The court held that such disclosure was prohibited under the SCA, absent consent from the e-mail subscriber, sender or recipient. BREATH OF RELIEF Marc Zwillinger, who represents ISPs and heads the Internet and data protection practice at Sonnenschein Nath & Rosenthal from its Washington, D.C., office, said the Virginia ruling provides a breath of relief to ISPs. "They're not in the business of responding to thousands of subpoenas in civil cases," said Zwillinger, who hailed the Virginia court's ruling for siding with privacy. "The statute was meant to protect [e-mails] like a letter. You can't subpoena the post office for a letter that went through it. You have to subpoena the person who wrote the letter. There's no exceptions for e-mails." Charles H. Kennedy, a privacy law attorney in the D.C. office of Morrison & Foerster, said many litigators are "just discovering that the law prevents them from obtaining these [e-mails]. "I've had attorneys for plaintiffs call me and ask me to advise clients that they should be responding to these subpoenas. They're often very surprised when I tell them that the clients may not do that," Kennedy said. "Even experienced litigators are surprised to find out that they just can't demand those." Kennedy added that, given the increase in online communication, he expects civil subpoenas for e-mail content, particularly in defamation suits, to continue to rise.
