Andy Thayer (“Plaintiff”) a protestor that was arrested while protesting the Iraq war, brought a civil rights suit against the City of Chicago (“City”), alleging that the City violated his constitutional rights when they arrested him and other protestors gathered for an unpermitted protest. (The City had previously denied the Plaintiff and the other protestors’ permit to protest).
The City filed a motion to compel requesting the Plaintiff produce numerous emails admittedly sent from his email account regarding the events and details of the protest. However, during the Plaintiff’s deposition he explained that many of those emails had been previously deleted to maintain his email storage capacity and that the emails were not recoverable. In turn, the City filed a third-party subpoena with the Plaintiff’s email provider, AOL, seeking that AOL turn over all of the Plaintiff’s email messages. After Plaintiff’s counsel objected to the breadth of the subpoena request, the City proposed to negotiate a more narrowed subpoena with the Plaintiff, but the Plaintiff never agreed.
Shortly thereafter, AOL objected to the subpoena in a letter to the Court arguing that the subpoena was improperly served and in violation of the Stored Communication Act (“SCA”), 18 U.S.C. § 2702(a)(1)(2). The paralegal who drafted the letter explained that the request was denied because: 1) a subpoena from the District Court in Illinois had no power to subpoena a party in Virginia—where AOL’s corporate headquarters are located; and 2) the SCA prohibits AOL from disclosing subscribers’ emails.
The Court, believing that the City’s subpoena was too broad, quashed the subpoena to AOL. Thereafter, the City modified the subpoena and sent a more narrowed request to AOL. AOL reiterated its former objections, but added “AOL does not maintain any email on its computer servers that is not directly accessible to the user of the screen name.” Id. at *1. The City then filed its motion to compel against AOL. AOL failed to appear at the hearing on the motion and the Court directed that AOL submit a response to the motion to compel.
Instead of AOL responding to the motion, Plaintiff’s counsel drafted a joint response—for both the Plaintiff and AOL—explaining that neither AOL nor the Plaintiff had access to any of the requested documents. However, just a few days later, Plaintiff’s counsel notified the Court that despite AOL and the Plaintiff’s previous assertions that AOL could not retrieve any of the deleted emails, AOL did in fact have emails that were responsive to the City’s request. In turn, AOL produced one email to the City, and the City argued that, pursuant to its subpoena, more documents were due to be produced.
In turn, the Court evaluated three areas of contention: 1) whether the SCA prevented the City from discovering relevant documents; 2) whether or not the City’s subpoena was narrowly tailored to produce only non-privileged relevant documents; and 3) whether AOL had access to communications that were responsive to the City’s request.
In evaluating the first point, whether the SCA prevented the City from discovering relevant documents, the Court found that the SCA “prohibits a ‘person or entity providing an electronic communication service to the public’ from ‘knowingly divulging to any person or entity the contents of a communications while in electronic storage by that service.’” Thayer, 2009 WL 2957317 at *5. The Court found that while most courts agreed that third parties could not be compelled to disclose electronic communications pursuant to a civil discovery subpoena, the instant case was distinguishable. The Court reasoned that AOL could be required to release electronic communications because the emails that would be released were documents that the Plaintiff would have had to produce had he not deleted them from this email account. Id. at *6. “Thus, if Mr. Thayer consented to the disclosure, the SCA would not prevent AOL from divulging emails responsive to the City’s subpoena—emails containing communications that likely go to the heart of Plaintiff’s damages claim.” Id. The Court also indicated that instead of issuing a third party subpoena, it could file a Federal Rules of Civil Procedure 34, which permits parties to request the production of documents and other items that are within “the responding party’s possession, custody, or control.” Id.
Next, the Court evaluated whether the City’s subpoena was narrowly tailored to discover relevant, non-privileged material. The Plaintiff argued that the City’s subpoena was overly broad and would indeed capture privileged communications and documents unrelated to the litigation. In arguing that the subpoena should be granted, the City noted that it tried several times to work with the Plaintiff in drafting a subpoena more tailored to the case. In reaching a balance between the parties, the Court decided to subject the parties to a pre-disclosure screening, i.e. where the producing party evaluates and categorizes each document before producing it to the opposing party. “As such, the Court direct[ed] AOL to produce all responsive emails to Plaintiff, who shall create a privilege log describing such documents and identifying the applicable privilege. Plaintiff in turn will forward all non-privileged, responsive emails to the city.” Id. * 8.
Finally, the Court, in a short, succinct statement found that though AOL originally represented that it was unable to access any of the Plaintiff’s deleted emails, since that time it had uncovered that some communications responsive to the City’s subpoena were available. As such, the Court reasoned that because AOL “almost certainly maintains a disaster relief system [for use] in the event that any of its email servers were to fail” those same measures could be used to retrieve the Plaintiff’s deleted emails.
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