Lucas v. Jolin et al

Filing 78

MEMORANDUM ORDER - IT IS ORDERED THAT: (1) Net VOIP's motion to quash the subpoena issued to Google 70 and/or for a protective order is GRANTED IN PART. (a) The referenced subpoena is hereby QUASHED except as modified as follows: (b) In respon se to the subpoena, Google shall produce to Plaintiff Lucas, on or before 6/15/2016, the to/from fields and time/date fields, for any communications between the subscriber victor.jolin@gmailcom and any email address ending in "@voipcom munications.com" that was transmitted between 1/1/2014 and 12/31/2015; (2) Plaintiff's construed motion to strike the entirety of Defendant's motion for summary judgment 72 is DENIED;(3) Plaintiff's motion to stay ruling on the pending motion for summary judgment until Plaintiff completes additional discovery under Rule 56(d) is GRANTED; (4) Plaintiff's prior oral motion to compel Defendant to produce additional discovery is GRANTED IN PART: (a) Defendant Net VOIP shal l, on or before 6/1/2016, provide its consent to Google and a request to release to Net VOIP any and all communications transmitted to or from any email address ending in "@voipcommunications.com" and Victor Jolin at victor.jolin@ gmailcom, to the extent that any responsive communications (including but not limited to emails) were transmitted between 1/1/2014 and 12/31/2015; (b) Within one week of receipt of the referenced communications from Google, Defendant shall transmit a ny responsive communications to Plaintiff. To the extent that Defendant Net VOIP withholds any documents, records, or communications produced to it by Google, Net VOIP shall produce to Plaintiff a privilege log explaining the basis for such withholdi ng; (5) Plaintiff's motion to exclude the Jolin affidavit attached to Defendant's reply memorandum in support of its motion for summary judgment 75 is GRANTED. Although undersigned declines to strike the affidavit from the record, the con tents of the affidavit will not be further considered by this Court. Signed by Magistrate Judge Stephanie K. Bowman on 5/16/2016. (km)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

VINCENT LUCAS,

Case No. 1:15-cv-108
Plaintiff,

Black, J.
Bowman, M.J.

v.

AURELIO JOLIN, et al.,
Defendants.

MEMORANDUM ORDER
The above captioned case, like an earlier closely related case filed by the same
pro se Plaintiff, 1 involves Plaintiff’s allegations of illegal telemarketing practices.
Pursuant to local practice, this case has been referred to the undersigned magistrate
judge for pretrial management and for initial consideration of any dispositive matters by
report and recommendation (“R&R”). Currently before the undersigned are four nondispositive motions: (1) Plaintiff’s motion to stay ruling on the motion for summary
judgment filed by Defendant Net VOIP Communications, Inc. (hereinafter “Net VOIP”),
and/or for additional discovery under Rule 56(d); (2) Net VOIP’s motion to quash a
subpoena issued to a third party, Google; and (3) Plaintiff’s motion to strike Net VOIP’s
motion to quash; and (4) Plaintiff’s motion to exclude the affidavit of a non-appearing

1

See Lucas v. Telemarketer Calling From [phone] and Other Telephone Numbers, Case No. 1:12cv-630. Alll further proceedings in Case No. 1:12-cv-630 have been indefinitely stayed pending an
anticipated FCC ruling on a petition filed by Plaintiff. (Doc. 178).

1

witness filed by Net VOIP. In addition to these non-dispositive motions, two dispositive
motions have been addressed in a separate Report and Recommendation filed this
same day.
I. Background
Plaintiff initiated this lawsuit on February 11, 2015, but Defendant Net VOIP was
not named as a party until November 1, 2015, when Plaintiff filed a second amended
complaint. Net VOIP is a company that provides “voice over internet protocol” which
allows customers to use the internet as a telephone service. Plaintiff’s claim against
Net VOIP rests on Defendant’s alleged business relationship with Victor Jolin, an
individual Defendant against whom Plaintiff seeks a default judgment, 2 who resides in
the Philippines. According to Plaintiff, Jolin made 12 illegal telemarketing calls to
Plaintiff’s residential phone number between the dates of November 24, 2014 and
January 27, 2015. (Doc. 32 at ¶¶8-9).
Plaintiff’s second amended complaint identifies Net VOIP as a “Florida
corporation,” and explains Net VOIP’s liability for the calls as follows: “On information
and belief, Victor Jolin is a Chief Technology Officer for Net VoIP Communications Inc,
and was acting in his capacity as an officer of Net VoIP Communications Inc. when he
performed each his actions described in ¶¶ 8-12.” (Doc. 32 at ¶20). Plaintiff further
alleges: “On information and belief, the actions of Jolin described in ¶¶ 8-12 were
performed as an officer of Net VoIP Communications Inc., and within the scope of his
duties as an officer of Net VoIP Communications Inc, and therefore Net VoIP
Communications Inc. is liable for those actions.” (Id. at ¶57). Last, Plaintiff alleges that
2

See Report and Recommendation filed herewith.

2

“Victor Jolin, Premium Outsourced Solutions Inc., Shawn Wolmuth, Visram, Inc., and
Net VoIP Communications Inc. are jointly and severally liable for the telemarketing calls
described in ¶ 8. They owe $45,600 for those telemarketing calls.” (Doc. 32).
A calendar order entered on February 10, 2016 set deadlines for disclosure of lay
and expert witnesses, with all discovery to be completed by August 31, 2016. (Doc.
64). Although the dispositive motion deadline will not expire until September 15 of this
year, Net VOIP promptly filed a motion for summary judgment on February 29, 2016,
shortly after entry of the Court’s calendar order. Defendant’s motion asserts that Victor
Jolin was an independent contractor for Net VOIP for a brief period in 2011 and 2012,
but that Jolin and the Defendant have not had any type of relationship since 2012 –
years before the alleged calls were made. (Doc. 74-2, Affidavit of Mohammed Ullah; see
also Doc. 72-2 at 5). Because the sole basis for Net VOIP’s liability rests on Plaintiff’s
allegation that Jolin was an officer of Net VOIP, the Defendant argues that it is entitled
to judgment as a matter of law.
Defendant presents additional arguments on summary judgment that it cannot be
held liable under the TCPA because the calls were not made on behalf of or at the
direction of Net VOIP, because Net VOIP does not place calls on behalf of its
customers, and because Net VOIP does not sell any services or products relating to the
subject of the calls at issue in this litigation (banking, credit card, or financial services).
Last, Net VOIP argues that it cannot be held vicariously liable under the TCPA for
Jolin’s conduct.
On March 24, 2016, Plaintiff filed a response in opposition to Net VOIP’s motion
for summary judgment, arguing in part that Plaintiff requires additional discovery under
3

Rule 56(d), Fed. R. Civ. P., in order to disprove Defendant’s assertion that Jolin was not
an officer or agent of Net VOIP during the relevant time period. Plaintiff sought an
informal discovery conference with the Court in order to address a related discovery
dispute.

In that dispute, Plaintiff sought to compel Net VOIP to produce additional

discovery and/or to execute a release to an email service provider (Google) in order to
provide Plaintiff with additional discovery. Both parties submitted informal memoranda
to the undersigned in anticipation of the telephonic conference, which memoranda have
not been filed of record.
In addition to Plaintiff’s request for an informal discovery conference, on March
17, 2016 Defendant Net VOIP filed a formal motion to quash a third-party subpoena
issued by Plaintiff to Google, which subpoena seeks email communications between
Defendant Net VOIP and Jolin. (Doc. 70). Plaintiff filed a response in opposition to the
motion to quash, to which Defendant filed a reply. Both the fully briefed motion to quash
and the parties’ informal memoranda concern the same discovery issue, which relates
to the pending motion for summary judgment. 3
II. Analysis of Discovery Issues
Defendant Net VOIP filed a motion to quash a subpoena issued by Plaintiff to
non-party internet service provider Google, which seeks email correspondence between
Net VOIP and Victor Jolin. Alternatively, Net VOIP seeks a protective order forbidding
disclosure of the requested discovery. On April 5, 2016, both parties tendered informal
memoranda in camera, in preparation for an informal discovery conference relating to
3

On April 6, 2016, the undersigned convened an informal telephonic discovery conference, but explained
to the parties that a single ruling would issue on the dispute following full briefing on the Defendant Net
VOIP’s motion to quash.

4

the same issue.

Although the parties’ informal memoranda have not been filed of

record, the arguments presented therein have been fully considered and are discussed
together with the motion to quash.
As stated above, Plaintiff seeks to hold Net VOIP liable for 12 specific telephone
calls that he alleges were made by Jolin in 2014 and 2015, based upon the allegation
that Jolin “is a Chief Technology Officer for Net VoIP Communications Inc, and was
acting in his capacity as an officer of Net VoIP Communications Inc.” when he made
those calls. Plaintiff’s allegation appears to have been based upon representations
made by Jolin on the social media website known as LinkedIn.com.

According to

Plaintiff, at the time Plaintiff filed his amended complaint against Net VOIP, Jolin’s
LinkedIn account stated that Jolin was employed as the “Chief Technology Officer” for
“NetVOIP Communications Inc.” and had been so employed since “September 2010”
through the “Present,” a period identified as five years and three months. According to
Plaintiff, Jolin’s LinkedIn account further represented that he performed the following
duties for Net VOIP: Linux Server Administration, Database Management, Systems
Development, VOIP systems integration and Development, and PHP programming.
In initial responses to Plaintiff’s discovery requests, Defendant Net VOIP denied
that Jolin ever has been an agent or officer of Net VOIP, including but not limited to
“Chief Technology Officer,” the title used on Jolin’s LinkedIn account. Instead, Net
VOIP states that Jolin was last employed as an independent contractor for Net VOIP in
“early 2012,” more than two years prior to the telephone calls at issue in this litigation.4

4

Net VOIP also points out that Jolin’s representation that he was employed by Net VOIP beginning in
2010 is at odds with the fact that Net VOIP was not formed until 2011. (Ullah Decl. ¶5).

5

Net VOIP paid Jolin via Western Union and provided pay records beginning in August
2011 and ending in April 2012 to support its representations.

In response to the

statements allegedly made by Jolin on his personal LinkedIn account, Defendant Net
VOIP states: “The title “Chief Technology Officer’ was not agreed upon by Net VOIP
and we are unaware why his LinkedIn Profile carries that title. He provided systems
development and VOIP systems integration and development.”

An affidavit by

Mohammed Ullah, identified as “President and owner” of Net VOIP, denies that Jolin
has ever held any employment position with Net VOIP, and confirms that “[d]uring this
litigation, Net VOIP learned for the first time” of Jolin’s “false” representations on his
LinkedIn account, and asked Jolin to “remove the errant information” which Jolin
thereafter did. (Doc. 74-2). According to Net VOIP, the only person familiar with Jolin’s
work, or involved in hiring or appointing Jolin, was Muhammad Ullah. Defendant Net
VOIP moved for summary judgment based upon those discovery responses, including
its unequivocal denial of any relationship with Jolin after 2012 that could give rise to its
liability for Jolin’s allegedly illegal telephone calls to the Plaintiff in 2014-2015.
Plaintiff does not believe the Defendant’s discovery responses, and seeks
additional discovery to prove that a genuine issue of material fact remains concerning
the relationship between Net VOIP and Jolin, which would preclude summary judgment
in Defendant’s favor.

Plaintiff speculates:

“The Gmail records could disprove Net

VoIP’s claim that it has not had any relationship with Jolin since 2012, and could show
that Jolin was an officer of Net VoIP, and acting in that capacity when he initiated the
calls that are the subject of this lawsuit.” (Doc. 72-1 at 3, Plaintiff’s Affidavit, emphasis
added). Plaintiff argues that either “Ullah or Jolin is lying” based on the discrepancy
6

between Jolin’s prior unsworn alleged representations on his LinkedIn account and the
Defendant’s sworn discovery responses.
After receiving Net VOIP’s initial responses, Plaintiff issued the referenced
subpoena to Google as well as a second set of written discovery requests to Net VOIP.
In his second set of requests to Net VOIP, Plaintiff seeks “[a]ll communications”
between Jolin and Net VOIP “on or after January 31, 2013” as well as all
communications in the same time frame between Jolin and Net VOIP “that are stored by
a third party but which you could obtain by granting your consent to release such
communications.” Plaintiff has clarified that he is seeking the production of “all emails
between [e-mail] and Defendant Net VOIP or Mohammad Ullah since
Jan 1, 2013 that are stored by Google Inc.
In response to Plaintiff’s second set of discovery requests, Net VOIP produced a
single email dated March 11, 2016 from Jolin to Mohammad Ullah, at the email address
of [e-mail]. The single email appears to be a
“forwarded” copy of an email that originated from Google to Jolin, alerting Jolin to the
existence of a subpoena issued to Google by Plaintiff Lucas. Net VOIP represents to
this Court that it has produced “the email correspondence” responsive to Plaintiff’s
request for emails between Net VOIOP and Jolin any time after January 1, 2013. (Doc.
74 at 2). Net VOIP objects to producing additional responsive documents on grounds
that Plaintiff’s request is overly broad, seeks irrelevant information, and amounts to a
fishing expedition.

Net VOIP also argues that additional emails are not within its

“possession or control” and that it would be unduly burdensome to require Net VOIP to
request the emails from Google.
7

The subpoena issued by Plaintiff to Google seeks all electronic communications
sent to or from any “netvoipcommunications.com” address from the email account of
[e-mail], as well as any document in the same Jolin email account that
contains the words “net voipo,” or “netvoip,” or “ullah” or in which the to/from field
contains the name “mohammad.”
A. Relevancy, Breadth, and Plaintiff’s Rule 56(d) Motion
In favor of a protective order preventing further disclosure, Defendant first argues
relevancy and overbreadth. Defendant asserts that since the subject telephone calls
were allegedly made by Jolin in late 2014 and early 2015, any request for emails dating
back to January 1, 2013 is overly broad. Defendant notes that it produced all “payment
records” (which ended in 2012), and has affirmed under oath that Jolin has not
performed any work for Net VOIP since 2012.

Thus, Defendant argues that any

communications that may exist between Jolin and Defendant or Muhammed Ullah in
2014 or 2015 could not possibly be relevant to Plaintiff’s claim. By contrast, Plaintiff
argues that “the mere existence of any emails between Jolin and Net VOIP after 2012
would disprove their defense.” (Doc. 73 at 4).
The undersigned finds the issue of whether Jolin and Net VOIP and/or
Mohammed Ullah (at his Netvoip account) exchanged emails to be within the scope of
discovery, at least for some period close in time to the subject phone calls. It is true that
on the one hand, when a moving party supports an assertion of fact by citing to
materials in the record, whether deposition testimony, affidavits, or interrogatory
answers, the Court will accept that evidence under Rule 56(c) without questioning the
veracity of the deponent or declarant offering the evidence. Under Rule 56(e), if a party
8

fails to properly address another party’s assertion of fact (here, that Jolin and Net VOIP
have had no relationship since 2012), the court may consider the fact undisputed.
Ordinarily, it is not sufficient for the party opposing summary judgment to argue without
admissible evidence “that testimony is false.”

Here, the only evidence that Plaintiff

offers to dispute Defendant’s evidence is an unverified and unsworn copy of what
Plaintiff alleges is a “LinkedIn” page entirely created by Jolin – a social media profile
created entirely by Jolin, and concerning which Net VIOP states it was unaware until the
advent of this litigation.
On the other hand, if a party asserts – as Lucas does here – that he needs more
time to present facts essential to justify his opposition to summary judgment, the court
may allow extra time for discovery. Lucas’s evidence that cause exists for additional
discovery may be thin, but it is not non-existent. However, the time period for the
discovery sought by Lucas is overbroad. The undersigned will limit the requests to a
more relevant time frame of January 1, 2014 through December 31, 2015. Having
determined that Lucas should be permitted additional time to obtain relevant discovery
from the Defendant under Rule 56(d), the undersigned turns now to the form of that
discovery – specifically, through Plaintiff’s subpoena to Google or through discovery
directed to Net VOIP.
B. The Stored Communications Act; Defendant’s Motion to Quash
The subpoena issued by Plaintiff to Google seeks all emails, text messages, and
other communications contained in the Google account of [e-mail] and
“any other Google account that Google knows to be owned by the same person” that
were sent to or received from any “netvoipcommuincations.com” email account, or that
9

contain (anywhere in the document) the words “net voip” or “netvoip” or “ullah” or in
which the to/from field contains the name “mohammed.” (Doc. 70 at 8). The subpoena
seeks “the complete contents” of all documents as to which “the originator or addressee
or intended recipient of such communication has given lawful consent to divulge the
contents,” and otherwise seeks “the complete contents of the documents” that are
responsive to the subpoena but “are not electronic communications within the meaning
of 18 U.S.C. §2702.” (Id.). For the reasons explained below, I conclude that the
subpoena should be quashed in part.
The Stored Communications Act, 18 U.S.C. §2702, (“SCA”), generally prohibits
any third party provider (such as Google) from releasing private communications to
certain entities and individuals. Although the SCA does not address the issue directly,
courts overwhelmingly have held that the SCA prevents a provider from releasing the
“contents” of a user’s stored communications in response to a civil subpoena from a
third party.

In re Facebook, Inc., 923 F. Supp. 2d 1204, 1206 n. 4 (N.D. Cal.

2014)(collecting cases); Suzlon Energy Ltd. v. Microsoft Corp., 671 F.3d 726 (9th Cir.
2011); F.T.C. v. Netscape Communications Corp., 196 F.R.D. 559, 561 (N.D. Cal.
2000); In re Subpoena Duces Tecum to AOL, LLC, 550 F. Supp.2d 606 (E.D. Va. 2008);
Viacom Intern Inc. v. YouTube Inc., 253 F.R.D. 256 (S.D.N.Y. 2008); J.T. Shannon
Lumber Co., Inc. v. Gileo Lumbar Inc., 2008 WL 4755370 (N.D. Miss. 2008); Thayer v.
Chiczewski, 2009 WL 2957317 (N.D. Ill. 2009). Nevertheless, an electronic
communication service provider may release subscriber information that is not
considered “content” under 18 U.S.C. §2702(c)(6). The “contents” of a communication
are defined as “information concerning the substance, purport, or meaning of that
10

communication.”

18 U.S.C. §§2711(1) and 2510(8).

A provider may also release

communications if the subscriber gives consent to the release of such communications.
Net VOIP persuasively argues that it cannot give consent for Google to release
emails contained in the email account of the individual Defendant, Victor Jolin, as
opposed to an email account controlled directly by Net VOIP. Even if Plaintiff were able
to prove that Jolin is employed by Net VOIP, no authority supports the ability of Net
VOIP to give consent for the release of communications from the individual email
(“gmail”) account to which the subpoena is directed. Of course, as discussed below, the
fact that Net VOIP cannot consent to Google’s release of Jolin’s emails does not mean
that Net VOIP cannot consent to the release of Net VOIP’s own emails.
1. Net VOIP’s Standing to Challenge the Subpoena
Even though the subpoena is directed to disclosure of Jolin’s personal gmail
account, and Net VOIP cannot consent for Jolin, the undersigned concludes that
Defendant Net VOIP still has standing on the facts presented to challenge the
subpoena. Such standing exists to the extent that Net VOIP asserts its personal right or
privilege concerning any emails that were exchanged between Net VOIP and Jolin.
Plaintiff points out that Net VOIP’s discovery responses state that the Defendant has not
had any communications with Jolin since 2012, and the subpoena seeks only emails
after 2013.
responsive

Plaintiff questions how standing could exist absent the existence of
communications

(contrary

to

Defendant’s

discovery

responses).

Fundamentally, Plaintiff questions Net VOIP’s motivation in seeking to quash the
subpoena, arguing that the Google records could exonerate the Defendant and confirm
the evidence submitted on summary judgment that Net VOIP and Jolin had no
11

relationship at the time Jolin made the offending phone calls, unless (as Plaintiff
maintains) the Defendant is lying in order to escape liability.
The undersigned does not agree that the only rational basis for VOIP to file the
motion to quash was some type of malfeasance – either to mislead this Court or
otherwise to conceal the truth. A party that has valid legal grounds to object to an
improper or invalid subpoena should not be inhibited from doing so, out of fear that the
opponent seeking the unlawful discovery will cry, “well, he must be hiding something.”5
As a matter of law, Net VOIP has standing because the subpoena specifically seeks the
private communications of Net VOIP, regardless of whether such communications
ultimately are found to exist. See generally Systems Products and Solutions, Inc. v.
Scranlin, 2014 WL 3894385, at *7 (E.D. Mich. Aug. 8, 2014); Special Markets Ins.
Consultants, Inc. v. Lynch, 2012 WL 1565348 at *1 (N.D. Ill. May 2, 2012)(holding that
party has standing to object to subpoenas to Microsoft and Yahoo that sought party’s
personal information both under Rule 45 and under Rule 26(c)(1)).
2. Whether the Subpoena Should be Quashed or Modified
Plaintiff asserts that the subpoena does not violate the SCA because it seeks
only: (1) information that is not prohibited from disclosure under the SCA because it
does not constitute the “contents” of a communication; (2) communications as to which
Jolin or Net VOIP have given “consent” to disclose; and (3) communications that are not
within the definition of “electronic communications” in the SCA.

5

Defendant asserts that its opposition is based upon its efforts to limit its overall costs and fees in this
litigation, and to “stop the fishing expedition of Plaintiff.” (Doc. 74 at 8). For the reasons stated, the
undersigned finds it inappropriate to examine the motivations behind a party’s otherwise valid legal
defense.

12

To a limited extent, Plaintiff is correct. However, the undersigned concludes that
the subpoena must be partially quashed to clarify what is sought. First, concerning
information that is not the “contents” of a communication, Plaintiff is entitled to limited
disclosure. Plaintiff argues that disclosure of an email’s to and from fields and date/time
fields would not reveal the “content” of the referenced communication. See also Mintz
v. Mark Bartelstein & Associates, Inc. 885 F. Supp.2d 987, 993 (C.D. Cal. 2012)(holding
SCA does not prohibit disclosure of date, time, originator and recipient fields). The
undersigned can only partially agree. Plaintiff’s search terms, seeking all emails or
related communications that may include “net voip” or “muhammed” or “ullah” anywhere
in the document, clearly are content-based. The “subject” field of an email also reveals
the “contents” of a communication.

However, non-content related metadata may be

disclosed without violating the SCA. Accord Systems Products and Solutions, Inc.,
2015 WL 3894385, at *8-9 (modifying subpoena to permit disclosure only of metadata);
Schweickert v. Hunts Point Ventures, Inc., 2014 WL 6886630, at *12 (W.D. Wash. Dec.
4, 2014); see also generally In re Zynga Privacy Litigation, 750 F.3d 1098 (9th Cir.
2014)(discussing what constitutes content).
With respect to the second category, it is abundantly clear that neither Jolin nor
Net VOIP have given implied or express consent to disclosure of the communications, 6
so the subpoena also should be quashed for that category. Accord Suzlon Energy Ltd.
v. Microsoft Corp., 671 F.3d at 726-728, 731 (declining to find implied consent,
6

Plaintiff briefly seems to argue a variation of implied consent by Jolin. He argues that Jolin “forfeited any
expectation of privacy by using his [Google] account to conduct an illegal business.” Plaintiff points to
Google’s contractual terms of service and privacy policy, which forbid the use of Google for unlawful
purposes. However, the undersigned declines to find any breach of contract of Google’s contractual
terms by Jolin. Neither Google nor Jolin have appeared in this litigation, and their contractual agreement
is not directly at dispute.

13

upholding lower court’s order quashing subpoena to prevent plaintiff from obtaining
email messages of foreign defendant); see also generally Elcometer, Inc. v. TQC- USA,
Inc., 2013 WL 5346382, at *3 (E.D. Mich. Sept. 23, 2013)(denying motion to compel
third

party

to

produce

defendants’

email

even

though

defendants’

own

unresponsiveness thwarted plaintiff’s ability to obtain discovery); Bower v. Bower, 808
F. Supp.2d 348 (D. Mass. 2011)(acknowledging “frustration” but refusing to find spouse
who fled jurisdiction and refused to appear implied consent to disclose contents of
stored communications).
With respect to the third category listed in the subpoena, it is unclear what
information would be within Google’s possession that would fall outside of the scope of
the SCA, other than – perhaps – the information that is non-content based.

It is

possible that Plaintiff is seeking documents created in Google Docs, but the SCA
generally prohibits disclosure of any “record or other information pertaining to a
subscriber” not merely “communications” as that term is defined.

See 18 U.S.C.

§2702(a)(3). Absent more specific argument that any record or other information under
Google’s control and relating to Victor Jolin would fall outside of the SCA, the
undersigned concludes that all such information falls within the scope of the SCA.
Therefore, Google need not respond to the third category identified in the subpoena.
Thus, in the absence of any controlling authority supporting enforcement of the
broad scope of the subpoena at issue, the undersigned finds it appropriate to modify the
subpoena to require disclosure only of the to/from and date/time fields for emails in the
account of [e-mail], dating January 1, 2014 through December 1, 2015,
that were exchanged between the referenced subscriber and anyone using an email
14

address identified as

“@netvoipcommuincations.com” including but not limited to

[e-mail].
In a reply memorandum opposing further discovery, Net VOIP argues that the
production of only limited non-content information would be insufficient to overcome the
evidence submitted in support of Net VOIP’s motion for summary judgment. While the
validity of Defendant’s presumption is untested, even if true, the production of the
metadata may lead to the discovery of additional evidence that would be sufficient to
create a genuine issue of material fact.

For that reason, the undersigned has

recommended the denial of Net VOIP’s motion for summary judgment in the
accompanying R&R, without prejudice to renew upon the completion of the discovery
detailed by this Order.
3. Net VOIP’s Possession or Control of Relevant Emails
Although this Court has partially quashed the subpoena issued by Plaintiff to
Google for Jolin’s account information, broader disclosure of the content of email
communications between Net VOIP and Jolin is permissible through Net VOIP under
Rule 34, rather than from Google directly. Plaintiff argues that this Court should simply
direct Google to respond to the full subpoena by holding that Net VOIP has “consented”
to the release of any emails sent to it from Jolin. Despite the extra step required, the
undersigned finds more persuasive the approach set forth in Flagg v. City of Detroit,
242 F.R.D. 346 (E.D. 2008). In Flagg, the court found emails stored by a third party to
be within the party’s possession or control under Rule 34, and directed that party to
request the electronic communications from the third party in lieu of enforcing any type
of subpoena that might otherwise violate the SCA. The court found it to be “immaterial
15

whether a party…might prefer not to give the necessary consent – if a party has the
requisite control over a requested document, it must exercise this control in order to
comply with the mandate of Rule 34.” Id. at 355. As one treatise explains, the SCA
effectively protects against disclosures obtained directly from third parties, not under
traditional discovery rules, “which makes sense given that a non-party generally would
not have an opportunity to appear to contest the scope or validity of a request.”

4 E-

Commerce and Internet Law Part IX, § 50.06[4][C][v] (December 2015 update).
Here, Net VOIP has the legal right to obtain any emails that it sent to or received
from Victor Jolin. Net VOIP’s defense is grounded on its representation that Jolin was
not employed by Net VOIP and was not otherwise authorized to act on behalf of Net
VOIP when Jolin allegedly made the offending 12 telephone calls in late 2014 and early
2015. Net VOIP additionally has represented that it has “not communicated with Jolin
since 2012” other than the recent email concerning the subpoena, and matters relating
to the motion to quash. Given these representations, the referenced emails (to the
extent any exist) are both relevant and discoverable. Accord Mintz v. Mark Bartelstein
& Assoc., Inc., 885 F. Supp.2d 8987, 994 (C.D. Cal. 2012).
In a personal injury case, when a plaintiff seeks damages for claimed injuries, he
or she is often directed to execute a release in order for the defendant to examine his or
her medical records related to the injuries, including medical records that may prove
pre-existing injuries or otherwise lend credence to the defense. In a similar way, Net
VOIP will be compelled to request directly from Google the release of certain emails
within the relevant time period, so that Plaintiff has some opportunity to discover
relevant documents that may undermine the grounds on which Net VOIP seeks
16

summary judgment and help prove Plaintiff’s claim. Accord, Glazer v. Fireman’s Fund
Ins. Co., 2012 WL 1197167 at *3 (S.D. N.Y> 2012)(directing plaintiff to gather and
produce her chats in her account); 2012 WL 5265170 at *1 (S.D. Ohio 2012).
C. Plaintiff’s Construed Motion to Strike Motion for Summary
Judgment and Motion to Exclude Jolin’s Affidavit
In his response to Defendant’s motion for summary judgment, Plaintiff asserts
that the entire motion for summary judgment “should be stricken for non-compliance
with Judge Black’s Standing Order Governing Civil Motions for Summary Judgment.”
(Doc. 72 at 1).

Plaintiff’s response is construed as a motion to strike Defendant’s

dispositive motion on the procedural ground that Defendant failed to properly serve
Notice to Plaintiff as a pro se litigant. Defendant states that its failure to serve Plaintiff
with the requisite Notice was entirely inadvertent and had no prejudicial impact on
Plaintiff. As Defendant points out, Plaintiff is a seasoned litigator who uses the email
address

[e-mail].

The

undersigned

accepts

Defendant’s

explanation that its failure to comply with the standing order was inadvertent, and
agrees that striking the pending motion would not serve the interests of justice.
In addition to his construed motion to strike defendant’s motion for summary
judgment, Plaintiff has filed a motion seeking to exclude Net VOIP’s inclusion of an
affidavit authored by Jolin and attached to Defendant’s reply memorandum in support of
its motion for summary judgment. (See Doc. 74-1). Although Plaintiff criticizes the
affidavit as unverified, he chiefly argues that the affidavit should be excluded “unless
and until Defendant makes Jolin available for deposition upon oral questions and unless

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Jolin complies with his duties to produce documents and things under Rule 34.” (Doc.
75).
Technically, since the undersigned has by separate R&R recommended denial of
the pending motion for summary judgment without prejudice to renew, Plaintiff’s motion
to exclude the Jolin affidavit is moot. However, to the extent that the presiding district
judge may decline to adopt that recommendation, and/or to the extent that Net VOIP
would re-file the same affidavit in a later motion, the undersigned agrees that the
affidavit should be excluded from any consideration by this Court in its present form.
Although an affidavit may be used on summary judgment, an opposing party may
support its factual position by “showing that the materials cited do not establish the
absence …of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.” Rule 56(c)(1)(B). In addition, it is permissible for a party
opposing summary judgment to “object that the material cited to support or dispute a
fact cannot be presented in a form that would be admissible in evidence.” Rule 56(c)(2)
(emphasis added). An affidavit submitted on summary judgment “must be made on
personal knowledge, set out facts that would be admissible in evidence, and show that
the affiant or declarant is competent to testify on the matters stated.” Rule 56(c)(4).
To date, Net VOIP has failed to show that the same facts asserted by Jolin in his
affidavit would be presented by Jolin “in a form that would be admissible in evidence” at
trial, whether through deposition or live testimony.

After all, Jolin resides in the

Philippines and has refused to appear in this litigation to date.
Ironically, even though he opposes use of the affidavit by Defendant on summary
judgment, Plaintiff argues that this Court should view Jolin’s affidavit as akin to a court
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appearance, such that the Court should order Jolin to consent to the Google subpoena.
The undersigned previously has explained the rationale for ordering a party who has
appeared in court to request the production of relevant electronic communications from
a third party internet service provider under Rule 34. However, I do not agree that
Jolin’s affidavit is equivalent to the appearance of a party. 7
III. Conclusion and Order
Accordingly, IT IS ORDERED THAT:
1. Net VOIP’s motion to quash the subpoena issued to Google (Doc. 70) and/or
for a protective order is GRANTED IN PART;
a. The referenced subpoena is hereby QUASHED except as modified in
the paragraph below;
b. In response to the subpoena, Google shall produce to Plaintiff Lucas,
on or before June 15, 2016, the to/from fields and time/date fields, for any
communications between the subscriber victor.jolin@gmailcom and any
email address ending in “@voipcommunications.com” that was transmitted
between January 1, 2014 and December 31, 2015;
2. Plaintiff’s construed motion to strike the entirety of Defendant’s motion for
summary judgment (Doc. 72) is DENIED;
3. Plaintiff’s motion to stay ruling on the pending motion for summary judgment
until Plaintiff completes additional discovery under Rule 56(d) is GRANTED;

7

For reasons that include the possibility that Jolin eventually will choose to appear, the undersigned has
recommended denying Plaintiff’s motion for default judgment against Jolin, without prejudice to renew.

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4.

Plaintiff’s prior oral motion to compel Defendant to produce additional

discovery is GRANTED IN PART:
a.

Defendant Net VOIP shall, on or before June 1, 2016, provide its

consent to Google and a request to release to Net VOIP any and all
communications transmitted to or from any email address ending in
“@voipcommunications.com” and Victor Jolin at victor.jolin@gmailcom, to
the extent that any responsive communications (including but not limited
to emails) were transmitted between January 1, 2014 and December 31,
2015;
b. Within one week of receipt of the referenced communications from
Google, Defendant shall transmit any responsive communications to
Plaintiff.

To the extent that Defendant Net VOIP withholds any

documents, records, or communications produced to it by Google, Net
VOIP shall produce to Plaintiff a privilege log explaining the basis for such
withholding;
5. Plaintiff’s motion to exclude the Jolin affidavit attached to Defendant’s reply
memorandum in support of its motion for summary judgment (Doc. 75) is GRANTED.
Although undersigned declines to strike the affidavit from the record, the contents of the
affidavit will not be further considered by this Court.

s/Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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