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Metadata is Not “Content” Under the Stored Communications Act

Posted on March 1st, 2013

All this week, our blog has been discussing the 2013 case Optiver Australia v. Libra Trading, 2013 WL 256771 (N.D.Cal.), where a district court partially quashed a third-party subpoena served upon Google. The plaintiff sought discovery relating to emails directly from Google, as it alleged the defense production was inadequate in response to plaintiff electronic discovery requests, and plaintiff suspected the defendant may have purposefully deleted key emails.

In partially quashing the subpoenas, the district court made clear that under the Stored Communications Act (“SCA”), both keyword searches and requested subject lines fell under the definition of “content” that the SCA forbids service providers from disclosing.  But the court did hold that “metadata” from the email communications is not “content,” and therefore, the plaintiff is entitled to receive “metadata.”

The court cited Beluga Shipping v. Suzlon Energy LTD., 2010 WL 3749279 (N.D.Cal Sept 23, 2010), which held that “Google, as a service provider, was only required to produce non-content information such as the names of the email account holders, when the email accounts were created, and the countries from which the email accounts were created.” Id. at 3 (Footnote 17).

Although this is not the complete information that the plaintiff requested, it still may be extremely helpful in the case. The court allowed the subpoena to stand in regards to “Documents sufficient to show the recipient(s), sender, date sent, date received, date read and date deleted of emails, email attachments, or Google Talk messages…”

As a large part of the original case was allegations that the defendant engaged in email spoliation, knowing the senders, the recipients and the dates received and deleted can be extremely useful information. For example, it might make clear that the defendants purposely deleted a number of emails in anticipation of litigation, which could lead to sanctions, an adverse inference instruction, monetary damages and more. To quote the court’s holding, “[Plaintiff] is entitled to non-content metadata, and such metadata it shall receive.” Id. at 3.

ILS – Plaintiff eDiscovery Experts

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