Forensic Update

Reflections on information management within the legal and regulatory arena

Tread carefully in discovery requests of third-party email accounts…

Posted by Johnny Lee on October 8, 2010

Not so fast!A federal court in California has held that the consent of the account holder is required, under the Stored Communications Act, to obtain copies of emails in Google’s possession.  The case, Beluga Shipping GMBH & Co. KS Beluga Fantastic v. Suzlon Energy LTD. (N.D. Cal., Sept. 23, 2010), hinged upon a the plaintiff employer’s belief that a fraud was being committed by several of its former employees and furthered by those employees via email exchanges using Google-hosted email accounts.

Accordingly, plaintiff filed a discovery petition to request that Google provide all emails transmitted or received by its former employees.  The petition requested information from specific email accounts, and it further requested that Google help establish when these accounts were created and any information used in the creation of these accounts.

Google responded that it was unable to comply with the discovery petition without running afoul of the Stored Communications Act (q.v., 18 U.S.C. §§2701-2712).  Specifically, Google argued that only the individual account holders could consent to the turn-over of this information; without it, Google argued that its performance of the steps requested in the discovery petition would be unlawful.

The court agreed with the thrust of Google’s argument, denying plaintiff’s motion to compel production of specific emails.  That said, the court did grant part of the petition, directing Google to produce materials that established the chronology of when certain accounts were created as well as the user information provided to establish these accounts.  The court also directed Google to preserve any and all emails that were potentially related to this matter.

This decision is significant for any party seeking to explore discovery with third-party email service providers.  In addition to the fairly stringent requirement of obtaining the account holder’s consent, litigants should be cognizant of the applications of this precedent to other data that may be hosted similarly in other types of cloud services—from email to remote backup providers to hosted ERP vendors.  Regardless, Beluga seems like required reading for anyone seeking to delve into the hosted email archives of a responsive party.

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