Can't Live Without It, LLC v. ETS Express Inc

Filing 2

ORDER by Judge Maria-Elena James granting 1 Motion to Quash. (mejlc3, COURT STAFF) (Filed on 12/7/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CAN'T LIVE WITHOUT IT, LLC, Plaintiff, 8 9 10 United States District Court Northern District of California 11 v. Case No. 17-mc-80144-MEJ ORDER RE: MOTION TO QUASH Re: Dkt. No. 1 ETS EXPRESS INC, Defendant. 12 13 ETS Express, Inc. is a defendant in a civil action pending in the Southern District of New 14 York. See Not. of Mot. at 1, Dkt. No. 1. ETS served a subpoena on non-party Google, Inc., 15 purporting to require Google to produce emails from the personal email address of non-party 16 Sarah M. Kauss. See Mot., Ex. A (Subpoena). Ms. Kauss moves to quash the subpoena to Google 17 in its entirety on the ground it violates the Stored Communications Act (SCA), 18 U.S.C. § 2701 18 et seq. Mot. at 1. ETS did not file an Opposition. See Dkt. The Court finds this matter suitable 19 for decision without oral argument. See Fed. R. Civ. P. 78(b); Civ. L.R. 7-1(b). 20 Civil subpoenas are subject to the SCA. See Theofel v. Farey-Jones, 359 F.3d 1066, 1071- 21 72, 1077 (9th Cir. 2004). The SCA generally prohibits “‘providers’ of communication services 22 from divulging private communications to certain entities and/or individuals.” Quon v. Arch 23 Wireless Operating Co., Inc., 529 F.3d 892, 900 (9th Cir. 2008), rev’d on other grounds by City of 24 Ontario v. Quon, 560 U.S. 746 (2010). The SCA allows an electronic communications service 25 provider to “divulge a record or other information pertaining to a subscriber to or customer of such 26 service . . . to any person other than a governmental entity” but emphasizes that such records do 27 “not includ[e] the contents of communications.” 18 U.S.C. § 2702(c)(6); see also Svenson v. 28 Google Inc., 65 F. Supp. 3d 717, 728 (N.D. Cal. 2014) (“contents” of a communication include 1 “any information concerning the substance, purport, or meaning of that communication”, while 2 “record information generally includes the name, address, or client ID number of the entity’s 3 customers”) (internal quotation marks and citation omitted). Because ETS has not opposed the Motion, there is no dispute Google is a provider of 4 communication services. See also Low v. LinkedIn Corp., 900 F. Supp. 2d 1010, 1022 (N.D. Cal. 6 2012) (“A provider of email services is an [electronic communications service]”); Theofel, 359 7 F.3d at 1075 (messages remaining on an ISP for backup purposes after being sent are in electronic 8 storage). ETS’ civil subpoena purports to compel Google to produce Ms. Kauss’ emails regarding 9 a variety of subjects, including attachments thereto. See Subpoena at ECF p.6. The Subpoena 10 accordingly requests the contents of Ms. Kauss’ emails without her consent in violation of the 11 United States District Court Northern District of California 5 SCA. Ms. Kauss’ Motion to Quash is therefore GRANTED.1 See, e.g., Occupy Columbia v. 12 Haley, 2013 WL 12149696 (N.D. Cal. Feb. 15, 2013). 13 Ms. Kauss shall serve a copy of this Order on ETS and Google. 14 IT IS SO ORDERED. 15 16 Dated: December 7, 2017 ______________________________________ MARIA-ELENA JAMES United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28 1 Ms. Kauss also moves to quash the subpoena on the ground it is “manifestly overbroad . . . unduly burdensome . . . would invade Ms. Kauss’s personal privacy; and would sweep in material subject to [various] privileges.” Mot. at 1. Because the Court grants the Motion because it violates the SCA, it does not address this second ground. 2

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