finding an individual has standing to move to quash a subpoena seeking personal documents and details of email accounts from third-parties, as they have a personal interest in the documents soughtSummary of this case from Leonardo World Corp. v. Pegasus Solutions, Inc.
No. C10-80205 MISC JW (HRL).
October 14, 2010
ORDER GRANTING DEFENDANT SHAUN HUBBARD'S MOTION TO QUASH [Re: Docket No. 1]
Brian Abernathy ("Abernathy"), an inmate at Oklahoma State Reformatory in Granite, Oklahoma, was killed by other inmates while in prison. Plaintiff Janice Chasten ("Chasten") is Abernathy's mother and, as personal representative of Abernathy's estate, is suing several individuals in federal court in the Western District of Oklahoma in relation to Abernathy's death. One of the defendants is Shaun Hubbard ("Hubbard"), a corrections officer at the prison.
Chasten deposed Hubbard in the course of prosecuting her action. In that deposition she learned that Hubbard uses a personal email account provided by Yahoo! Inc. ("Yahoo!"), apparently registered as "Rhage_blackdaggerbrotherhood@yahoo.com." Chasten then served a subpoena duces tecum on Yahoo!, which is located in this District, requesting "all e-mails sent from e-mail account `Rhage_blackdaggerbrotherhood@yahoo.com' between March 1, 2008 and July 31, 2010." (Docket No. 1 ("Motion"), Ex. 1.)
Hubbard now moves to quash the subpoena and argues that it is an unwarranted invasion of his privacy and is in violation of the Stored Communications Act, 18 U.S.C. §§ 2701- 2712 ("SCA"). (Motion.) Chasten does not oppose Hubbard's motion. (Docket No. 6.)
Hubbard's motion states that Chasten's subpoena violates the Electronic Communications Privacy Act ("ECPA") and does not mention the SCA, which was passed by Congress in 1986 as part of the ECPA. But because the SCA contains the statutes cited by Hubbard and at issue here, 18 U.S.C. §§ 2701- 2703, this Court will refer only to the SCA.
Pursuant to Civil Local Rule 7-1(b), the Court finds the matter suitable for determination without oral argument, and the October 19, 2010 hearing is vacated.
On motion, Federal Rule of Civil Procedure 45(c)(3)(A) requires the court to quash or modify a subpoena that "requires disclosure of privileged or other protected matter, if no exception or waiver applies" or that "subjects a person to undue burden." FED. R. CIV. P. 45(c)(3)(A)(iii) (iv).
A. Whether Hubbard Has Standing to Move to Quash a Subpoena Directed to Non-Party Yahoo! Inc.
As an initial matter, the Court must determine whether Hubbard has standing to move to quash a subpoena served upon a non-party. "Ordinarily a party has no standing to seek to quash a subpoena issued to someone who is not a party to the action, unless the objecting party claims some personal right or privilege with regard to the documents sought." 9A CHARLES ALAN WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE PROCEDURE § 2459 (3d ed. 2008). See also Crispin v. Christian Audigier, Inc., No. CV 09-09509 MMM (JEMx), 2010 WL 2293238, at *5 (C.D. Cal. May 26, 2010) (quoting Wright Miller and providing additional citations). Several courts, though, have determined that an individual has standing to move to quash a subpoena seeking electronic personal information and communications protected by the SCA. See Crispin, 2010 WL 2293238, at *7 (plaintiff had standing because he had a personal right with regard to subscriber information and communications subpoenaed by defendants); J.T. Shannon Lumber Co., Inc. v. Gilco Lumber, Inc., No. 2:07-CV-199, 2008 WL 3833216, at *1 (N.D. Miss. Aug. 14, 2008) ("[B]ecause the documents sought by the plaintiff are the personal documents and the details of the email accounts of the defendant employees, the defendants have standing to seek to quash this subpoena as they have a personal interest in the documents sought from the internet service provider.").
This situation is similar to those in the cases cited above, and the same reasoning is equally valid. Hubbard has a personal right with respect to the emails sent from his Yahoo! email account and thus has standing to move to quash Chasten's subpoena.
B. Whether Chasten's Subpoena to Yahoo! Must Be Quashed
Hubbard argues that the SCA prohibits Yahoo! from disclosing the stored contents of Hubbard's email in response to a civil subpoena. He is correct. Subject to certain specificallyenumerated exceptions, the SCA essentially prohibits providers of electronic communication or remote computing services to the public from knowingly divulging the contents of their customers' electronic communications or the records relating to their customers. See 18 U.S.C. § 2702(a) (b). But as many courts have explained, civil subpoenas to a non-party, however, are not among section 2702(b)'s "unambiguous exceptions." In re Subpoena Duces Tecum to AOL, LLC, 550 F.Supp.2d 606, 610, 611 (E.D. Va. 2008) ("Applying the clear and unambiguous language of [18 U.S.C.] § 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."); see also Viacom Int'l Inc. v. Youtube, Inc., 253 F.R.D. 256, 264 (S.D.N.Y. 2008) (holding that the SCA prohibits disclosure of electronic communications pursuant to a civil subpoena because the SCA "contains no exception for disclosure of such communications pursuant to civil discovery requests.").
Because no exception applies, compliance with the subpoena would be "an `invasion . . . of the specific interests that the [SCA] seeks to protect." Theofel v. Farey-Jones, 359 F.3d 1066, 1074 (9th Cir. 2004) (quoting J.H. Desnick, M.D., Eye Servs., Ltd. v. ABC, 44 F.3d 1345, 1352 (7th Cir. 1995), cert. denied, 543 U.S. 813 (2004)). Since Chasten's subpoena seeks all email sent from Hubbard's Yahoo! e-mail account between March 1, 2008 and July 31, 2010 and thus requires the impermissible disclosure of information, it must be quashed. FED. R. CIV. P. 45(c)(3)(A)(iii); see also Hone v. Presidente U.S.A., Inc., No. C08-80071 MISC JF (HRL), 2008 U.S. Dist. LEXIS 55722 (N.D. Cal. July 21, 2008).
Indeed, allowing Chasten to obtain Hubbard's emails through a civil discovery subpoena to Yahoo! would allow parties to "make an end-run around the [SCA's] protections through the use of a Rule 45 subpoena." F.T.C. v. Netscape Comm. Corp., 196 F.R.D. 559, 561 (N.D. Cal. 2000).
IT IS SO ORDERED.
Dated: October 14, 2010