There is no psychic privilege. However, the legal tealeaves foretell a discovery dispute between online psychic advice and the Stored Communication Act.
Judge Frank Maas had to interpret the legal Tarot Cards in an employment dispute involving a Plaintiff who sought online psychic advice.
The Defendants sought discovery from the third-party online advice and consulting service, as the subject matter of the communications arguably were relevant to the lawsuit. Glazer v. Fireman’s Fund Ins. Co., 2012 U.S. Dist. LEXIS 51658, 9-10 (S.D.N.Y. Apr. 4, 2012).
The third-party was a “…platform for on-line advice and professional consulting services.” Glazer, at *2. The consulting services included many professions, including legal services. Id.
The Plaintiff “chatted” with a psychic on advice pertaining to her job, work performance and other issues the Defendant argued were relevant to the lawsuit. Further, the Plaintiff would email excerpts from her chat sessions to her work email account. Glazer, at *2-3. The Plaintiff closed her account in November 2011 and deleted her old chats sometime before closing her account. Glazer, at *3.
The third-party opposed the discovery request, arguing the Plaintiff could open a new account and access her old chats herself. Glazer, at *4-5.
The Plaintiff argued that the Stored Communication Act proscribed the third-party from producing chat transcripts, because an electronic communication service (“ECS”) provider may “not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service.” Glazer, at *5-6, citing 18 U.S.C. § 2702(a)(1). The Plaintiff further argued that a remote computing service (“RCS”) provider may not “knowingly divulge to any person or entity the contents of any communication which is carried or maintained on that service.” Glazer, at *6, citing § 2702(a)(2).
The Court stated that the third-party was either a RCS or ECS, or both, but there was a questions whether the communications were electronically stored under the Stored Communication Act. Glazer, at *6-7.
The Court effectively decided to avoid the SCA issues, including whether the communications were electronically stored or whether the Plaintiff consented to their disclosure. Instead, the Court “directed” the Plaintiff to consent to the disclosure of relevant chats. Glazer, at *9. The Court stated:
Indeed, even if the Court were to conclude that the SCA is inapplicable to the discovery that Fireman’s Fund seeks, it would make more sense to require that Glazer produce the relevant communications herself, with LivePerson needing to do so only to the extent that Glazer cannot.
Glazer, at *9-10.
Based on the above, the Court ordered the Plaintiff to do the following:
Open a new account
Retrieve all available paid chat transcripts
Produce non-privileged electronic copies to the Defendant
Glazer, at *10.
Judge Maas did not place any subject matter restrictions on the chat transcripts, because the material the Defendants presented to the Court was “relevant for at least discovery purposes.” Glazer, at *10.
Bow Tie Thoughts
I think Judge Maas got this case right on producing ESI highly comparable to social media information. Instead of propounding discovery on third parties with lengthy analysis of the Stored Communication Act, or compelling a producing party to surrender their login credentials to a requesting party, the burden should be on the producing party to review and produce relevant electronically stored information.
Discovery over email does not require passwords and login credentials being surrendered to a requesting party to review email messages at will. Moreover, cases involving the mirror imaging of hard drives do not allow a requesting party to review the entire contents of someone’s digital life. In most situations, the producing party can review for relevance or privilege.
Social media should be no different. Relevancy should not ignored simply because of “friend requests” or Tweets.