Being a Fugitive is Not Consent for Production under the Stored Communications Act

The Plaintiff sued his former wife and EgyptAir for abducting their children and taking the children from the United States to Egypt without his consent.  The Defendant never appeared in the lawsuit and ignored the court proceedings.  Bower v. Mirvat El-Nady Bower, 2011 U.S. Dist. LEXIS 36677 (D. Mass. Apr. 5, 2011).

The Plaintiff served Google and Yahoo a third-party request to produce the Defendant’s emails from approximately the month before she took the children to Egypt to present.  Bower, at *3.

The Plaintiff requested the Court to order that the Defendant granted consent to the production of her email messages from Yahoo and Google.  Id.

Both Google and Yahoo argued they could not comply with the third-party discovery request, because such production is specifically not permitted under the Stored Communications Act.  Bower, at *3-4.

The Court agreed that the production was barred by the Stored Communications Act and further “declined” to find the defaulting Defendant “impliedly consented to the production of her emails.” Bower, at *4.

The Stored Communications Act

Yahoo and Google are both “electronic communication service” providers under the Stored Communications Act, which states in relevant part:

[A] person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service[.]

Bower, at *4, citing 18 U.S.C. § 2702(a)(1)

One Court explained the protections of the Stored Communications Act as follows:

“[P]rotecting privacy interests in personal information stored in computerized systems, while also protecting the Government’s legitimate law enforcement needs, the Privacy Act creates a zone of privacy to protect internet subscribers from having their personal information wrongfully used and publicly disclosed by ‘unauthorized private parties,’ S.REP. No. 99-541, at 3 (1986), as reprinted in 1986 U.S.C.C.A.N. 3555, 3557.”

Bower, at *4-5, citing, In re Subpoena Duces Tecum to AOL, LLC, 550 F. Supp. 2d 606, 610 (E.D. Va. 2008).

The Plaintiff’s Arguments

The Plaintiff argued that since his former wife was a fugitive, “she should be deemed to have consented to the disclosure of her emails.”  Bower, at *5.  Alternatively, the Plaintiff argued the Court order the Defendant to consent and any default to consent should be deemed as the Defendant’s consent.  Id.

The Court’s Finding

The Court refused to find that the Defendant’s default amounted to consent under the Stored Communications Act for the production of her email.  Bower, at *6-10.

There was no case law where a court ordered the production electronically stored information belonging to a fugitive defendant or by default under either Federal Rules of Civil Procedure Rules 34 or 45. Bower, at *6-7, fn 1.

While the Court recognized the Plaintiff’s frustration, there was no evidence that the Defendant “consented” to her email being produced.  Moreover, the Court would not order her “consent” through her failure to participate in the litigation.  Bower, at *6-10.

Bow Tie Thoughts

The Stored Communication Act creates a significant privacy interest in electronically stored information.  Moreover, it is questionable a Court to order a party to consent to waive their rights under the Stored Communication Act (as one California case is demonstrating).

There may not be a winnable scenario to compel third-party production from a defaulting defendant of “cloud” based email messages.  It might be possible for a Court to order the production of enough information to identify where a party is located, but disclosing the contents will likely be barred.