Fontenot v. Brouillette
Filing
83
OPINION AND ORDER Pltf's objections to 78 the Magistrate Judge's Order are SUSTAINED and the Defendants' subpoena on Google is QUASHED.(Signed by Judge Melinda Harmon) Parties notified.(htippen, )
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
RACHEL FONTENOT,
Plaintiff,
VS.
JOHN BROUILLETTE, et al,
Defendants.
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CIVIL ACTION NO. H-10-1053
OPINION AND ORDER
Pending before the Court is Plaintiff Rachel Fontenot’s objections (Doc. 81) to the
Magistrate Judge’s order (Doc. 78) denying Fontenot’s motion to quash Defendants’ subpoena
on Google, Inc. The Magistrate Judge denied the Plaintiff’s motion, but limited the subpoena by
requiring that Google provide the requested documents to Plaintiff’s counsel “so that counsel can
create a log of those documents that counsel believes are irrelevant or otherwise privileged.”
Doc. 78 at 2.
Plaintiff appeals that order on the grounds that the Stored Communications Act [“SCA”],
18 U.SC. §§ 2701-2712, “prohibits providers of electronic communications or remote computer
services to the public from knowingly divulging the contents of their customers’ electronic
communications or the records relating to their customers.” Doc. 81 at 4. Because the Court finds
that the SCA does protect Plaintiff’s email communications in this case, Plaintiff’s objections are
sustained and Defendants’ subpoena on Google is quashed.
“The Stored Communications Act of 1986 prohibits the unauthorized disclosure of stored
electronic communication and customer account information unless an exception applies.” J.T.
Shannon Lumber Co., Inc. v. Gilco Limber, Inc., No. 2:07-CV-119, 2008 WL 3833216, *1
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(N.D.Miss. Aug. 14, 2008). Specifically, it is a violation of the SCA for “a person or entity
providing an electronic communication service to the public . . . knowingly [to] divulge to any
person or entity the contents of a communication while in electronic storage by that service,”
subject to the exceptions provided in the statute. 18 U.S.C. § 1702(a)(1). The SCA contains no
exceptions for civil discovery. See id; J.T. Shannon Lumber Co., Inc, 2008 WL 3833216 (citing
In re Subpoena Duces Tecum to AOL, 550 F.Supp.2d 606, 611 (E.D.Va. 2008)).
The CSA defines “electronic storage” as “(A) any temporary, intermediate storage of a
wire or electronic communication incidental to the electronic transmission thereof; and (B) any
storage of such communication by an electronic communication service for purposes of backup
protection of such communication.” 18 U.S.C. § 2510(17)(A, B). The statute does not define the
terms “incidental to the electronic transmission thereof” nor “backup protection.”
Defendants, in their response to Plaintiff’s original motion to quash the subpoena, cited
cases from the Eastern District of Pennsylvania and the Southern District of New York for the
proposition that the SCA definition of “electronic storage” includes only communications that
are stored “after the message is sent by the Sender, but before it is retrieved by the intended
recipient” or for back-up protection storage “which protects the communication in the event the
system crashes before transmission is complete.” Doc. 63 at 6; Fraser v. Nationwide Mut. Ins.
Co., 135 F.Supp.2d 623 (E.D.Pa. 2001); In re Doubleclick, Inc. Privacy Litigation, 154
F.Supp.2d 497 (S.D.N.Y. 2001).
The Court disagrees that the scope of the SCA’s protection is limited to that exceedingly
brief period during which a message is transmitted or to those rare instances in which messages
that are temporarily stored in the event of a transmission failure. Because of the speed of
electronic communications and the relative rarity of “system crashes,” this reading would narrow
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the scope of the SCA to protect only the tiniest fraction of electronic communications. The Court
concurs with the Northern District of Mississippi that “[t]he statute prohibits a person or entity
that provides an electronic communication service to the public from knowingly divulging the
contents of any communication that is carried or maintained on the system.” J.T. Shannon
Lumber Co., Inc, 2008 WL 3833216, *2.
Because Defendants here seek messages that are still “maintained on the system” and
have not been downloaded or otherwise removed from the “electronic storage” provided by
Google, the Court hereby
ORDERS that Plaintiff’s objections to the Magistrate Judge’s Order are SUSTAINED
and the Defendants’ subpoena on Google is QUASHED.
SIGNED at Houston, Texas, this 9th day of February, 2012.
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MELINDA HARMON
UNITED STATES DISTRICT JUDGE
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