In a case involving alienation of affection, the Plaintiff sought early discovery on third party electronic communication service providers. Dockery v. Horvath, 2011 U.S. Dist. LEXIS 124997, 2-3 (S.D. Miss. Oct. 27, 2011). The case was in procedural limbo, because the Defendants were in New York state, had not filed an answer and the Plaintiff had not secured a default judgment. Dockery, at *2.
The motion for early discovery sought, “permission to serve subpoenas on any known third party through which Defendant…and Plaintiff’s now ex-wife have communicated, prior to the Rule 26(f) attorney conference requirement, in an effort to obtain critical evidence and prevent it from being lost.” Dockery, at *2-3. The motion referred to electronic communications from the third-party service providers, such as cell phones, text messages and email, on the understanding the ESI was “time sensitive.” Id.
The Court noted the Plaintiff’s legal support for their position was “unclear.” Id.
Good cause is required for early discovery on third parties prior to a Rule 26(f) conference. Dockery, at *4.
The Court quickly held the Plaintiff did not establish good cause, because there was no particularized showing or evidentiary support that the ESI would be lost. As the Court stated, “The assertions in his motion are supported only by understanding and belief, and are vague and conclusory at best.” Dockery, at *4-5.
Bow Tie Thoughts
There are two challenges to seeking early discovery of ESI from third party communication providers: The first is showing good cause to justify the early discovery and the second is the Stored Communications Act.
Even if a party is able to demonstrate good cause, such as there is a specific time in which email messages are maintained on a provider server, the service provider cannot produce the content of those messages without violating the Stored Communication Act. (From more SCA cases, see Dueling Definitions of “Interception” in Wiretap Violations, Being a Fugitive is Not Consent for Production under the Stored Communications Act, and Quashing Subpoenas with the Stored Communication Act).
Furthermore, the wholesale production of all communications from a specific individual would arguably be overly broad and include either irrelevant or privileged information. The requesting part would want the ESI request narrowly tailored to what was relevant to the case to ease the cost and time of document review.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.