Obodai v. Indeed, Inc.

Filing 14

Order by Magistrate Judge Kandis A. Westmore granting in part and modifying 1 Plaintiff's Motion to Quash Indeed, Inc.'s Subpoena to Google, Inc.(kawlc1, COURT STAFF) (Filed on 3/21/2013) (Additional attachment(s) added on 3/21/2013: # 1 Certificate/Proof of Service) (sisS, COURT STAFF).

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United States District Court
Northern District of California

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AUSTIN OBODAI (d/b/a Heptad),

Case No.: 13-80027-MISC EMC (KAW)

Plaintiff,

ORDER GRANTING IN PART
PLAINTIFF’S MOTION TO QUASH,
MODIFYING INDEED, INC.’S SUBPOENA
TO GOOGLE, INC.

v.
INDEED, INC.,
Defendants.

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United States District Court
Northern District of California

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On February 7, 2013, Plaintiff Austin Obodai (d/b/a Heptad, hereinafter referred to as

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“Plaintiff” or “Obodai”), appearing pro se, moved to quash a subpoena issued by Indeed, Inc.

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(“Indeed”) to obtain e-mail subscriber information from Google, Inc. (“Google”) for use in a

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proceeding in the U.S. District Court for the Southern District of New York. (See Pl.’s Mot. to

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Quash (“Pl.’s Mot.”), Dkt. No. 1.) On March 21, 2013, the court held a hearing. Having

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reviewed the papers and considered the parties’ arguments, the Court GRANTS-IN-PART

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Obodai’s motion and MODIFIES Indeed’s subpoena for the reasons set forth below.

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I.

BACKGROUND

Indeed operates a global online forum for job seekers. (Def.’s Opp. to Pl.’s Mot. to Quash

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(“Def.’s Opp.”), Dkt. No. 6, at 1.) Obodai is a professional blogger who owns or operates a

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website, www.choicehow.com. (Id.) This website contains articles on a variety of “how-to”

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subjects, including, for example, “How to Get Your Car Stolen” and “How to Store Bookmarks

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From Chrome.” (Choicehow.com, http://www.choicehow.com (last visited Mar. 21, 2013).)

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On June 19, 2012, Plaintiff filed the underlying action in the U.S. District Court for the

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Southern District of New York. See Obodai v. Indeed, Inc., C 12-04901 JGK DCF (S.D.N.Y.). In

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his original complaint, Plaintiff alleges copyright infringement of 27 works that were essentially

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unlawfully distributed through Indeed’s website. (See Compl., SDNY Dkt. No. 2, ¶¶ 6-7, 12-13,

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15-16.)

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According to Indeed, Plaintiff’s infringement claims arise from a resume posted on

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Indeed’s website by an individual named “John Daniels,” which contained some of Plaintiff’s

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copyrighted content. (Def.’s Opp., at 2.) Indeed believes that Plaintiff himself created the “John

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Daniels” account and sent himself notice that his copyrighted works were available on Indeed’s

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website, because the account creation and Obodai’s receipt of the notice of infringement from an

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unidentified third party all occurred within a 25 hour period. (Id. at 2-3.) Indeed claims that all of

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these events originated from the same Internet Protocol (“IP”) address located near Plaintiff’s

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United States District Court
Northern District of California

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residence. (Id. at 3.)
On January 24, 2013, Indeed subpoenaed Google to obtain subscriber information and IP

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address information for Plaintiff’s [e-mail] account. (Pl.’s Mot., Exh. A.)

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Indeed’s subpoena consists of three requests:

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1. All Documents sufficient to Identify all individuals and/or entities associated
with the e-mail account related to the e-mail address [e-mail],
including the names, addresses, telephone numbers, and e-mail addresses of such
individuals or entities.
2. All Documents sufficient to identify every IP Address Used to access the email account relating to the e-mail address [e-mail], and the dates
and times of each such access.
3. All Documents relating to any individual(s) who created, accessed and/or used
the email address [e-mail].

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(See Pl.’s Mot., Exh. A.) Indeed’s boilerplate definition of “Documents” includes

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“communications, correspondence, email, [and] telegrams”. (Id.) Defendant contends that the

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subpoena only seeks to ascertain whether Obodai has accessed his personal Google e-mail

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account from the same IP address used to create the “John Daniels” account and upload the

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allegedly infringing works to Indeed’s website. (Def.’s Opp., at 3.)

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On February 7, 2013, Plaintiff filed the instant motion to quash on the grounds that the

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subpoena improperly seeks the content of his electronic communications in violation of the Stored

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Communications Act, 18 U.S.C. § 2701, et seq. (Pl.’s Mot., at 1.)
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II.

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LEGAL STANDARD

Pursuant to Rule 45 of the Federal Rules of Civil Procedure, “the issuing court must quash

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or modify a subpoena that... requires disclosure of privileged or otherwise protected matter....”

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See Fed. R. Civ. P. 45(c)(3)(A)(iii).

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Civil subpoenas are subject to the prohibitions of the Stored Communications Act

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(“SCA”). See Theofel v. Farey–Jones, 359 F.3d 1066, 1071–72, 1077 (9th Cir.2004). Congress

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passed the SCA in 1986 because “the advent of the Internet presented a host of potential privacy

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breaches that the Fourth Amendment does not address.” Optiver Australia Pty. Ltd. & Anor. v.

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Tibra Trading Pty. Ltd. & Ors., C 12-80242 EJD PSG, 2013 WL 256771, at *1 (N.D. Cal. Jan.
23, 2013)(citing 18 U.S.C. § 2701, et seq.). The SCA prohibits electronic service providers from

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United States District Court
Northern District of California

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knowingly producing the contents of a user’s electronic communications. Id. at *2 (citing 18

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U.S.C. § 2701, et seq.). The SCA, however, permits service providers to produce subscriber

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information “to any person other than a governmental entity.” 18 U.S.C. § 2702(c)(6).
III.

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DISCUSSION

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A. Indeed, Inc.’s definition of “Documents” is overbroad and appears to seek
content protected by the Stored Communications Act.

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The crux of Plaintiff’s motion to quash appears to be Indeed’s broad, boilerplate definition

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of the term “Documents,” which includes e-mails, communications, and correspondence. (See

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Pl.’s Mot., Exh. A.)

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Generally, the Stored Communications Act (“SCA”), 18 U.S.C. §2701, et seq., prohibits

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electronic communication service providers from “knowingly divulg[ing] to any person or entity

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the contents of a communication while in electronic storage by that service”. 18 U.S.C. §

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2702(a)(1); see Optiver Australia Pty. Ltd. & Anor. v. Tibra Trading Pty. Ltd. & Ors., C 12-

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80242 EJD PSG, 2013 WL 256771, at *2 (N.D. Cal. Jan. 23, 2013). A plain reading of Indeed’s

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subpoena suggests that they are seeking contents of e-mails and other communications that are

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protected by the SCA.

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Indeed’s opposition, however, affirmatively states that it does not seek any content
information, but rather only “information regarding Obodai’s registration of his email account,

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including the name, address, telephone numbers, and other identifying information of the account

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holder, as well as information regarding the IP addresses used by the e-mail account holder to

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access the account.” (Def.’s Opp., at 4:17-22.)
In light of Indeed’s assertion that it is not seeking content information, but rather only

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subscriber information, the subpoena shall be modified to only include non-content information as

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set forth below.

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B. Indeed is entitled to subscriber information.

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The SCA permits service providers to divulge subscriber information “to any person other

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than a governmental entity.” 18 U.S.C. § 2702(c)(6). For that reason, a subpoena may be
permissible if it seeks the identity of specific emails or accounts. Beluga Shipping GMBH & Co.

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United States District Court
Northern District of California

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KS BELUGA FANTASTIC v. Suzlon Energy LTD., C 10-80034 JW PVT, 2010 WL 3749279

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(N.D. Cal. Sept. 23, 2010) (citing O'Grady, 139 Cal.App.4th at 1447, 44 Cal.Rptr.3d 72).
As a practical matter, a user furnishes certain identifying information when he creates a

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Gmail account. This information includes phone numbers and alternate email addresses that may

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be used for recovery purposes (i.e. forgetting a password). As provided above, this information is

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not protected by the SCA, as it is not considered content, and may be produced in response to a

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civil subpoena by a non-governmental entity. See 18 U.S.C. § 2702(c)(6).
Indeed properly seeks the subscriber information for the [e-mail] account.

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This account is both relevant to the underlying action, and it is associated with Plaintiff, as the

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court in the underlying action has expressly ordered that service of documents may be made to

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that email address. (Def.’s Opp., at 3 n. 2.)
Since subscriber information is not protected by the SCA, Indeed may obtain non-content

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information pursuant to a valid, civil subpoena. As provided above, Indeed’s Request No. 1 is

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overbroad in its reference to content-based documents, and must be modified accordingly to limit

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it to subscriber information.

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C. Indeed is entitled to IP address information for the subject email address;
Relevant Time Period is not overbroad.

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Indeed seeks a list of all IP addresses that have accessed the [e-mail]

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account, along with the dates and times of access, from April 1, 2012 to present.1 Under 18

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U.S.C. § 2702(c)(1), customer records or subscriber information may be disclosed as authorized

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in 18 U.S.C. § 2703, which permits providers to disclose user identification information, “records

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of session times and durations” and “temporarily assigned network addresses.” 18 U.S.C. §

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2703(c)(2); see Sams v. Yahoo!, Inc., CV-10-5897-JF HRL, 2011 WL 1884633 (N.D. Cal. May

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18, 2011)(subscriber information and IP address data is not content-based). This information is
not considered to be content-based, and so may be produced in response to a civil subpoena

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United States District Court
Northern District of California

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pursuant to the SCA.

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Plaintiff believes that the ten month time period is overbroad, as the underlying action is

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based on events which took place on June 14 and 15, 2012. (Pl.’s Mot., at 5.) In the discovery

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context, relevancy is a very broad standard, such that each party has the right to discover “any

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nonprivileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1).

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Collecting IP address information for a period of less than one year may be relevant to Indeed’s

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claims or defenses, and is reasonable, as Plaintiff contends that the copyright infringement

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occurred in June 2012. See Optiver Australia Pty. Ltd. & Anor., 2013 WL 256771, at *3 (ordered

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production of non-content data from the year prior to the alleged infringement).

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Plaintiff also contends that only a single IP address has been used to access his personal

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email account. Indeed, however, is not required to take Plaintiff at his word, and so may obtain

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this discovery.

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Therefore, Request No. 2 shall be modified to allow Indeed to obtain all IP addresses used

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to access [e-mail], as well as the dates and times of such access. No content data

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shall be divulged. At the hearing, Indeed agreed to withdraw Request No. 3 in its entirety, so that

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request is stricken.

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The Court will define “present” as January 24, 2013, which was the day the subpoena was dated.
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D. A Protective Order is Not Properly Before this Court

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Plaintiff asks that the Court, in quashing the subpoena, also grant a protective order “to bar

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similar future requests.” (Pl.’s Mot., at 5.) As an initial matter, this request is procedurally

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improper, as Rule 26 requires that the parties make a good faith effort to meet and confer prior to

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filing a motion for protective order. Fed. R. Civ. P. 26(c)(1) (requires that the movant certify that

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he made a good faith effort to meet and confer). Second, the jurisdiction of this Court is limited

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to the pending motion to quash, and is not presiding over the underlying action, so Plaintiff

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should file any such requests for relief from the court in the underlying action. For these reasons,

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Plaintiff’s request for protective order is denied.
IV.

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United States District Court
Northern District of California

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CONCLUSION

For the reasons set forth above, the Court GRANTS-IN-PART Plaintiff's Motion to

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Quash. Pursuant to Rule 45(c)(3)(A)(iii), the Court MODIFIES Indeed’s subpoena, such that

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Google shall provide only the following information:

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All subscriber information related to the e-mail address [e-mail],

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including the names, addresses, telephone numbers, and e-mail addresses of such individuals or

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entities.

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2.

Documents sufficient to identify every IP Address Used to access the e-mail

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account relating to the e-mail address [e-mail] from April 1, 2012 to January 24,

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2013, and the dates and times of each such access, excluding information that may contain

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content data, such as communications, email, and email subject lines.

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Further, Plaintiff’s request for protective order is DENIED.

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IT IS SO ORDERED.

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Dated: March 21, 2013

___________________________
KANDIS A. WESTMORE
United States Magistrate Judge

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