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For Most U.S. Residents, Internet E-mail Likely is Safe from Civil Legal Discovery by Third Parties

By Stephanie Robinson

A federal court recently issued an opinion indicating that, at least for U.S. residents, public, third-party-hosted and Internet-based e-mail may be the virtual world?s equivalent of a Swiss bank account for personal information. In In re Subpoena Duces Tecum to AOL, LLC, the U.S. District Court for the Eastern District of Virginia considered a subpoena issued by lawyers for State Farm to AOL, requesting copies of e-mails from the accounts of two non-party witnesses in litigation pending in a different jurisdiction. The Virginia magistrate judge granted the witnesses? motion to quash the subpoena, and in its opinion, the court upheld the magistrate?s decision, citing the U.S. Electronic Communications Privacy Act (ECPA). Among other things, the ECPA prohibits providers of ?electronic communication services? from ?knowingly [divulging] to any person or entity the contents of a communication while in electronic storage by that service.? The ECPA also includes a number of exceptions, most notably including several directed to governmental and law enforcement authorities. State Farm argued that the terms of one exception were broad enough to include within their scope court orders issued pursuant to discovery requests in civil litigation, but the district court, citing to prior precedent, disagreed and allowed the magistrate?s order to stand. This case and others indicate that one consequence of the ECPA has been to provide an incentive to opt, whenever feasible, for third-party hosted e-mail, rather than privately hosted e-mail, which is not included within the scope of the ECPA?s protections. Potentially restrictive terms of service and third-party account control may outweigh other considerations, but where it is important, for whatever reason, to avoid discovery of electronic communications through legal discovery, publicly hosted e-mail appears to include certain advantages.

Full post as published by Business and Technology Law on June 18, 2008 (boomark / email).