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Court Partially Quashes Third-Party Subpoena Served on Google Under the SCA

Posted on February 27th, 2013

Our last blog discussed the facts of Optiver Australia v. Libra Trading, 2013 WL 256771 (N.D.Cal.). This case stems from a foreign proceeding, and its ruling therein on whether the plaintiff’s subpoena for certain email communications from a third-party, Google, violates the Stored Communications Act (“SCA”). Plaintiff alleged that defendant purposefully deleted certain key emails from “gmail” accounts, and they sought the information directly from Google.

Notably, plaintiff did not request the body or text of the emails, but the subpoena did seek to identify the recipient, sender, subject, date sent, date received, date read and date deleted of emails containing the terms “PGP” or “Optiver” between certain dates from certain gmail addresses. Defendants claim that this was essentially still seeking “content,” which the SCA specifically forbids service providers from disclosing.

Optiver first argued that since “PGP” is an encryption system, it is not “content” under the definition provided by the SCA. It further claimed that it sought documents containing the word “Optiver” not to discover the substance of the communications, but to locate communications that are relevant. The Court, however, rejected these arguments stating that the SCA forbids any knowing disclosure of content, and that because the keywords are to be searched within the body of the communications, the terms constituted content, and therefore are forbidden from disclosure.

The court also held that since Optiver sought the subject lines of the emails, this is absolutely “content” intended to fall under the protections of the SCA—subject lines are no different than the body of the email . The court cited prior case law as well as the SCA legislative history to support this conclusion.

So is Opitver completely out of luck? Does all electronic data or language found in emails fall under the definition of “content” under the SCA? The court only partially quashed this subpoena, allowing for non-content data to be supplied. But what is this data, and what can it be used for? Our discussion of metadata and the conclusion of this case continues in our next blog.

ILS – Plaintiff Electronic Discovery Experts

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