Leonardo World Corporation v. Pegasus Solutions, Inc.,

Filing 16

ORDER GRANTING-IN-PART MOTION TO QUASH SUBPOENA IN CIVIL CASE by Magistrate Judge Paul Singh Grewal granting-in-part 1 (psglc2, COURT STAFF) (Filed on 9/24/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION
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United States District Court
For the Northern District of California

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LEONARDO WORLD CORPORATION,
Plaintiff,

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v.

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PEGASUS SOLUTIONS, INC.,
Defendant.

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Case No. 5:15-mc-80165-PSG
ORDER GRANTING-IN-PART
MOTION TO QUASH SUBPOENA IN
CIVIL CASE
(Re: Docket No. 1)

Once again, the court confronts the question of exactly what data may be subpoenaed from

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a third-party service provider. Once again, the third-party provider is Google. In Optiver Australia

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Pty. Ltd. & Anor v. Tibra Trading Pty. Ltd & Ors., the court held that “[t]he SCA [Stored

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Communication Act] prohibits any knowing disclosure by service providers of the content of

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electronic communications, no matter how insignificant.” 1 Here, the parties agree that content is

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off limits; where they disagree is whether certain non-content in a Gmail account assigned to third-

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party Chris Wickers should be produced. Because the subpoena focuses on material reasonably

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likely to lead to the discovery of admissible evidence and is not otherwise unduly burdensome, 2 the

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court GRANTS Wickers’ motion to quash, but only IN-PART.

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Case No. 12-cv-80242, 2013 WL 256771, at *2 (N.D. Cal. Jan. 23, 2013).

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See Fed. R. Civ. P. 26(b)(1).

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Case No. 5:15-mc-80165-PSG
ORDER GRANTING-IN-PART MOTION TO QUASH SUBPOENA IN CIVIL CASE

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I.

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Leonardo provides digital content management and other services for hotels, hotel chains,

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hotel reservation processing intermediaries, online travel agencies and other travel-related

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websites. 3 Pegasus operates an online switch for processing hotel reservations, servicing nearly

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100,000 hotels world-wide. 4

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Several years ago, Leonardo and Pegasus entered into a strategic partnership wherein

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Leonardo became the exclusive provider of visual content pertaining to the hotels serviced by

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Pegasus for use on Pegasus’s online reservation switch. 5 But the partnership eventually ran its

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course, and the parties terminated the strategic partnership agreement.

United States District Court
For the Northern District of California

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Pegasus allegedly took umbrage at the breakup and sent messages to the so-called

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“Leonardo Hotel Chains” and certain online travel agencies that somehow caused the hotels and

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agencies to terminate their contracts with Leonardo or avoid any direct relationships with Leonardo

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in the first place. 6 In response, Leonardo sued Pegasus in the Northern District of Texas. In its

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most recent amended complaint, Leonardo alleges claims of: (1) tortious interference with

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contracts; (2) unfair competition; and (3) tortious interference with prospective contracts.
Wichers is the former Chief Sales Officer at Pegasus. 7 Wichers was in charge of Pegasus’s

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communications with its hotel chain customers and its online travel agency customers regarding

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the termination of the SPA and the hotels’ options going forward. 8 Wichers is alleged to have sent

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broadcast emails and other communications in June and July 2014 to hotel chains and online travel

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agencies at issue in the lawsuit. 9 On November 3, 2014, Wichers and Pegasus parted ways. 10

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See Docket No. 1-1 at ¶ 7.

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See id. at ¶ 8.

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See id. at ¶ 9.

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See id. at ¶¶ 20-65.

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See Docket No. 1, Wichers Decl., at ¶¶ 2-3.

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See id. at ¶ 2.

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See id. at ¶ 3; see also Docket No. 1-1 at ¶¶ 20-48.

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See Docket No. 1, Wichers Decl., at ¶ 5.

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Case No. 5:15-mc-80165-PSG
ORDER GRANTING-IN-PART MOTION TO QUASH SUBPOENA IN CIVIL CASE

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Leonardo deposed Wichers earlier this year. During the deposition, Leonardo’s counsel

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served Wichers with notice of a subpoena it served on Google for information from Wichers’

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Gmail account. The subpoena included four specific requests:
REQUEST FOR PRODUCTION NO. 1:

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DOCUMENTS sufficient to show the recipient(s), sender, date sent, date
received, date read, and the date deleted of emails, email attachments, or Google
Talk messages sent or received between January 1, 2014 to the present, that were
sent to or from [e-mail], INCLUDING emails that have been
deleted by and are no longer accessible to the user of the
[e-mail] account.

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REQUEST FOR PRODUCTION NO. 2:

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DOCUMENTS sufficient to show the recipient(s), sender. date sent, date
received, date read, and the date deleted of emails, email attachments, or Google
Talk messages sent or received between January 1, 2014 to the present, that were
sent to or from [e-mail], INCLUDING emails that have been
deleted by and are no longer accessible to the user of the
[e-mail] account.

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REQUEST FOR PRODUCTION NO.3:

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DOCUMENTS sufficient to show the subscriber information related to the email
address, [e-mail], INCLUDING the names, addresses,
telephone numbers, and email addresses of such PERSONS or ENTITIES.

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REQUEST FOR PRODUCTION NO. 4:

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DOCUMENTS sufficient to show the subscriber information related to the email
address, [e-mail], INCLUDING the names, addresses,
telephone numbers, and email addresses of such PERSONS or ENTITIES. 11

United States District Court
For the Northern District of California

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Wichers now moves to quash.
II.

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Because the subpoena issued to Google, a service provider headquartered in this district,

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this court has jurisdiction over Wichers’ motion pursuant to Fed. R. Civ. P. 45(d)(3)(a).
III.

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Civil subpoenas are subject to the restrictions of the SCA. Congress passed the SCA in

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1986 because “the advent of the Internet presented a host of potential privacy breaches that the

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Docket No. 1-2, Ex. A, at 4.

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Case No. 5:15-mc-80165-PSG
ORDER GRANTING-IN-PART MOTION TO QUASH SUBPOENA IN CIVIL CASE

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Fourth Amendment does not address.” 12 The SCA prohibits service providers from knowingly

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disclosing the contents of a user’s electronic communications. 13 The SCA states that “a person or

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entity providing an electronic communication service to the public shall not knowingly divulge to

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any person or entity the contents of a communication while in electronic storage by that service.” 14

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The “contents” of a “wire, oral, or electronic communication” are defined as “any information

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concerning the substance, purport, or meaning of that communication.” 15

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As a threshold matter, Wickers clearly has standing to move to quash. This court has held

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that any individual with personal rights and privileges with regard to personal email has standing to

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request an order quashing a third party subpoena. 16 Leonardo does not even argue otherwise.

United States District Court
For the Northern District of California

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Although the requests, and particularly the first set of requests, could be read to require

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production of content, Leonardo disclaims any interest in content from the account. And so the

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court turns to whether any non-content information demanded is improper. 17 The court concludes

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that, with two narrow exceptions, it is not.

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First, the information sought is plainly relevant, at least to Leonardo’s breach of contract

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and tortious inference claims. Leonardo’s breach-of-contract claim centers on the allegation that

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Wichers used his Gmail account to forward confidential Leonardo information to a Leonardo

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competitor in violation of the SPA. 18 Leonardo’s tortious interference and unfair competition

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Optiver, 2013 WL 256771, at *1 (quoting Quon v. Arch Wireless Operating Co., Inc., 529 F.3d
892, 900 (9th Cir. 2008), rev’d in part on other grounds sub nom. City of Ontario, Cal. v. Quon,
560 U.S. 746 (2010)).
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See 18 U.S.C. §§ 2701-2712.

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Id. § 2702(a)(1).

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Id. §§ 2711(1), 2510(8).

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See Chasten v. Franklin, Case No. 10-cv-80205, 2010 WL 4065606, at *1-2 (N.D. Cal. Oct. 14,
2010) (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
sought).

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Cf. Obodai v. Indeed, Inc., Case No. 13-cv-80027, 2013 WL 1191267, at *3-4 (N.D. Cal. Mar.
21, 2013).
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See Docket No. 4-5 at ¶¶ 43-54, 137.

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Case No. 5:15-mc-80165-PSG
ORDER GRANTING-IN-PART MOTION TO QUASH SUBPOENA IN CIVIL CASE