Obtaining Stored Wire And Electronic Communications And Transactional Records Why Is It So Difficult? Helpful Tips On Getting It Done

Joo Y. Park, Esquire
High Swartz LLP
610-275-0700
jpark@highswartz.com

It used to be that upon proper service of a subpoena, one could expect to obtain documents pertaining to the matter at issue in litigation. However, with the tremendous rise in the use of computers, cell phones, and other electronic communication devices within the last decade or so, attorneys now face the additional task of obtaining records that exist in the form of stored electronic data, such as emails, postings on websites (Facebook, MySpace, etc.), financial information stored by banks, history logs of account activities (telephone logs), etc. Due to the stringent privacy laws that have developed to protect one’s confidential and personal information in electronic storage, there is a strong trend among the electronic communication service providers to withhold production of subpoenaed information unless there is a court order directing them to do so. Moreover, the time and cost incurred by the service providers to research their data bank also play a factor in such trend. Below is an outline of several key applicable laws and tips on how to prepare for litigation that calls for the discovery of electronic communication and transactional records.

Statutory Law

18 Pa.C.S.A. Sec. 5742. Disclosure of Contents and Records

This Pennsylvania statute prohibits a person or entity providing an electronic communication and/or remote computing service to the public from knowingly divulging to any person or entity the contents of a communication that is carried, maintained, and/or stored in electronic storage by the provider. Sec. 5742(a).

The statute provides several exceptions under which the provider may divulge the contents of a communication. Perhaps the most applicable exception is the one allowing the provider to release the requested information upon receiving a “lawful consent of the originator or an addressee or intended recipient of the communication, or the subscriber in the case of remote service”. Sec. 5742(b)(3). Also useful is the exception that allows release of information upon a court order. Sec. 5742(c.1)(1).

This Pennsylvania statue, for the most part, mirrors the federal statute, the Stored Communications Act (“SCA”), 18 U.S.C. Section 2701 et seq.

18 Pa.C.S.A. Sec. 5721.1

This statute prohibits disclosure of contents of any wire, electronic or oral communication, or evidence derived therefrom, in any proceeding in any court, board or agency in Pennsylvania. Sec. 5721.1(a)(1). However, contents relating to investigative disclosure or use of contents of wire, electronic or oral communications or derivative evidence may be provided in any matter relating to any criminal, quasi-criminal, forfeiture, administrative enforcement or professional disciplinary proceedings. Sec. 5721.1(a)(2). Any aggrieved person, who is a party, may file a motion to exclude such contents or evidence and an order granting the requested exclusion will prohibit the requested disclosure from being made and admitted into the court. Sec.(a)(3) and (b).

Caselaw

Below are summaries of federal cases that reflect the courts’ balancing act of complying with the limitations set forth under the Stored Communication Act while making sure that not all electronic communications are excluded by the same, especially where the communications are readily available and under the control of the subpoenaed individual/entity.

In re Subpoena Duces Tecum to AOL, LLC, 550 F.Supp.2d 606 (E.D. Va., 2008)

This case ties in the Congress’s intent behind the Privacy Act and the Stored Communication Act (“SCA”). In this case, State Farm served a subpoena to AOL for production of emails by insurance adjusters, Keri and Cory Rigsby, for a specified six week time period. This subpoena was in relation to the underlying case pending in the Southern District of Mississippi (McIntosh v. State Farm Fire & Casualty Co.). The Rigsbys were investigating what they believed to be fraud with respect to State Farm’s treatment of Thomas and Pamela McIntosh’s Hurricane Karina damage claim. The Magistrate Judge quashed State Farm’s subpoena and the Eastern District Court of Virginia upheld the Magistrate’s decision. In support of its decision, the Court cited to Theofel v. Farey-Jones, 359 F.3d 1066 (Cal. 2004). In Theofel, an internet service provider complied with a subpoena requesting production of plaintiff’s emails. Upon production, it was revealed that many of the requested emails were privileged, personal and unrelated to the commercial litigation between the parties. In quashing the subpoena, the Court stated that the SCA “reflects Congress’s judgment that users have a legitimate interest in the confidentiality of communications in electronic storage at a communications facility.” Id. at 1073. In line with the reasoning of the Theofel court, the Court in the instant matter held that State Farm’s subpoena may not be enforced.

Capital One Bank (USA) N.A. v. Hess Kennedy Chartered, LLC, No. #:08CV147, 2008 WL 4467160 (E.D. Va., Sept. 30, 2008)

In this matter, Capital One sought from Consumer Credit Counseling of America, Inc. (“CCCA”), inter alia, “any and all documents, including, but not limited to, letters and/or e-mails, sent to, or received from any other defendant to this litigation, as well as all documents which in any way mention, regard or relate to any other defendant”. Capital One Bank, 2008 WL 4467160 at *2. CCCA objected, arguing that the request has no relationship to the subject matter of the litigation, is not limited by time, is unduly burdensome, overbroad, and not reasonably calculated to lead to the discovery of admissible evidence. In sustaining CCCA’s objection, the Court relied on its own recent holding in the above referenced In re Subpoena Duces Tecum to AOL, LLC, 550 F.Supp.2d 606 (E.D. Va., 2008). Note: The Court did grant leave for Capital One to promptly revise its demand, which perhaps shows that the Court does not wish to exclude electronically stored information entirely if there is information relevant to the litigation.

Flagg v. City of Detroit, 252 F.R.D. 346 (E.D.Mich., 2008)

This is a case that carves out an exception to the Stored Communication Act (“SCA”). In this matter, the Defendant City of Detroit (the “City”) entered into a contact for text messaging services with non-party service provider SkyTel, Inc. City employees were advised under the City’s electronic communications policy directive that they should assume that any electronic communication created, received, transmitted, or stored on the City’s electronic communication system was public information, and may be read by anyone. Although the City discontinued its contract with SkyTel in 2004, the company evidently continued to maintain copies of at least some of the text messages sent and received by City officials during the period when SkyTel provided service to the City.

Upon learning of SkyTel’s apparent retention of such communication, Plaintiff issued two broad subpoenas to SkyTel, seeking the disclosure of communications exchanged among certain officials and employees of the City. The City, and other individuals moved to squash these subpoenas arguing that the federal Stored Communication Act wholly precludes the production. The District Court affirmed the magistrate’s holding and rejected the City’s objection. Upon much grappling with the application of various sections of the SCA and the Federal Rules of Civil Procedures pertaining to discovery, the Court found that the City of Detroit is both able and obligated to obtain any consent from its employees that would be necessary to permit SkyTel to retrieve the requested communications from its archive and forward them to the magistrate judges for review. The Court reasoned that nothing in the plain language of the SCA requires a sweeping prohibition against civil discovery of electronic communication, especially if the communication was created by and maintained within the control of the City.

J.T. Shannon Lumber Company, Inc. v. Gilco Lumber Inc., No. 2:07-CV-119-SA-SAA, 2008 WL 4755370 (N.D. Miss. Oct. 29, 2008)

Plaintiff’s request to reconsider the Court’s order quashing the subpoenas duces tecum served on Microsoft Corporation, Google, Inc. and Yahoo!, Inc. was rejected by the Court. The Court found that the subpoenas at issue were facially invalid under the Stored Communication Act. The Court explained that the information requested in the subpoenas was overly broad and unduly burdensome and that the expansive scope of the requested information would likely lead to admissible evidence. Plaintiff’s further request that the Court direct the Defendant to consent to the release of the information at issue was also rejected by the Court. The Court reasoned that by requiring the Defendant and its employees to consent to the disclosure of such information by subpoena of the internet service provider, the Court would undermine the statute’s intent to create a zone of privacy around that medium. The Court further made it clear that there is no exception to the civil discovery rules, and the Court declines to create one by allowing an end run around the statute. In support of its decisions, the Court cited to In re Subpoena Duces Tecum to AOL, LLC, 5590 F. Supp. 2d 606, 611 (E.D.va. 2008), for general consideration.

Larrison v. Larrison, 750 A.2d 895 (Pa.Super 2000)

This is an old case, but is still good law. The issue before the Court was whether a telephone call placed by Mother in Pennsylvania to Father’s sister in New York, wherein Mother made obscene comments to Father and his sister, was admissible in a Pennsylvania child custody proceeding. In determining this issue, the Court first had to determine which substantive law to apply, Pennsylvania or New York. The Court explained that under the “flexible” approach taken by the Pennsylvania courts, the laws of the state having the most interest and concern in the outcome of the case would apply. Here, the Court held that New York held greater interest because New York allows its citizens to record telephone conversations lawfully with only the consent of the sender or receiver. In contrast, under Pennsylvania law, 18 Pa.C.S. Sec. 5721.1, “no person shall disclose the contents of any wire, electronic or oral communication, or evidence derived therefrom, in any proceeding in any court, board or agency of this Commonwealth”. Therefore, the Court applied New York law and held that the recording of the telephone conversation was admissible in a Pennsylvania Court proceeding.

Helpful Tips

• Avoid requesting a wide range of information; narrow down the scope of information sought and the pertinent time period.


• Provide a detailed description of the information sought using correct dates, names, key words, account log-in name, email addresses, etc.


• Research the service provider from whom information is sought. Was the service provider ever involved in litigation for production or lack of production of user/customer information? Be ready to carve out a distinction for your case.


• Contact someone in the legal department, not a general customer representative.


• When talking to the service provider, reference the exceptions under 18 Pa.C.S.A. Sec. 5742 and 18 U.S.C. Section 2702.


• Prepare a written consent of the account user/customer to go along with the subpoena. If possible, have the user/customer contact the service provider directly. (This works best if you are trying to get your own client’s records.)


• Work with counsel and the client to prepare a proposed order directing production of the information sought and provide it to the opposing counsel and expert. This will also be helpful for counsel when he/she appears before the judge, who will consider the reasonableness of the discovery request.