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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CAN'T LIVE WITHOUT IT, LLC,
Plaintiff,

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United States District Court
Northern District of California

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v.

Case No. 17-mc-80144-MEJ
ORDER RE: MOTION TO QUASH
Re: Dkt. No. 1

ETS EXPRESS INC,
Defendant.

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ETS Express, Inc. is a defendant in a civil action pending in the Southern District of New

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York. See Not. of Mot. at 1, Dkt. No. 1. ETS served a subpoena on non-party Google, Inc.,

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purporting to require Google to produce emails from the personal email address of non-party

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Sarah M. Kauss. See Mot., Ex. A (Subpoena). Ms. Kauss moves to quash the subpoena to Google

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in its entirety on the ground it violates the Stored Communications Act (SCA), 18 U.S.C. § 2701

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et seq. Mot. at 1. ETS did not file an Opposition. See Dkt. The Court finds this matter suitable

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for decision without oral argument. See Fed. R. Civ. P. 78(b); Civ. L.R. 7-1(b).

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Civil subpoenas are subject to the SCA. See Theofel v. Farey-Jones, 359 F.3d 1066, 1071-

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72, 1077 (9th Cir. 2004). The SCA generally prohibits “‘providers’ of communication services

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from divulging private communications to certain entities and/or individuals.” Quon v. Arch

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Wireless Operating Co., Inc., 529 F.3d 892, 900 (9th Cir. 2008), rev’d on other grounds by City of

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Ontario v. Quon, 560 U.S. 746 (2010). The SCA allows an electronic communications service

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provider to “divulge a record or other information pertaining to a subscriber to or customer of such

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service . . . to any person other than a governmental entity” but emphasizes that such records do

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“not includ[e] the contents of communications.” 18 U.S.C. § 2702(c)(6); see also Svenson v.

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Google Inc., 65 F. Supp. 3d 717, 728 (N.D. Cal. 2014) (“contents” of a communication include

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“any information concerning the substance, purport, or meaning of that communication”, while

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“record information generally includes the name, address, or client ID number of the entity’s

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customers”) (internal quotation marks and citation omitted).
Because ETS has not opposed the Motion, there is no dispute Google is a provider of

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communication services. See also Low v. LinkedIn Corp., 900 F. Supp. 2d 1010, 1022 (N.D. Cal.

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2012) (“A provider of email services is an [electronic communications service]”); Theofel, 359

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F.3d at 1075 (messages remaining on an ISP for backup purposes after being sent are in electronic

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storage). ETS’ civil subpoena purports to compel Google to produce Ms. Kauss’ emails regarding

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a variety of subjects, including attachments thereto. See Subpoena at ECF p.6. The Subpoena

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accordingly requests the contents of Ms. Kauss’ emails without her consent in violation of the

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United States District Court
Northern District of California

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SCA. Ms. Kauss’ Motion to Quash is therefore GRANTED.1 See, e.g., Occupy Columbia v.

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Haley, 2013 WL 12149696 (N.D. Cal. Feb. 15, 2013).

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Ms. Kauss shall serve a copy of this Order on ETS and Google.

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IT IS SO ORDERED.

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Dated: December 7, 2017
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge

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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.
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