There's No Implied Consent Under the Stored Communications Act, But Coerced Consent Is AOK

Negro v. Superior Court, No. H040146 (D6 as modified Nov. 18, 2014)

Generally, the Stored Communications Act, 18 U.S.C. §§ 2701–12, prohibits the provider of an electronic communications service from divulging the contents of communications stored on its service. This is why you ordinarily can’t subpoena Google for the contents of your opponent’s gmail account, which is just what the real party did in this writ case.

There is an exception, however, for when the subscriber gives its consent. But the consent cannot be implicit. It must be real consent-in-fact. Thus, to the extent the trial court here denied a motion to quash based on implicit consent by the subscriber, it erred.

That said, courts have nevertheless recognized that parties to litigation can be compelled by the court to give their consent, even though that doesn’t jibe with the concept of consent as commonly understood. Here, after the petitioner’s motion to quash was denied, he was ordered by a Florida court to consent to Google’s disclosing his gmail to the real party—his opponent in that litigation. He abided by the order, so there was effective consent to require Google to produce the documents. 

Finally, the court rejects Google's argument that the Act immunizes it from participating in third party discovery. Thus, the court here declines to issue a writ requiring the trial court to quash the subpoena.

As a side point, the subscriber’s consent was provided after he filed his writ petition in this case. In relying upon the evidence of consent as a basis to deny the writ, the court notes an exception to the general rule that the record is static on appeal. An appellate court proceeding in mandate can consider all relevant evidence, including facts not existing until after the petition was filed, particularly when the additional evidence may validate an action that would otherwise have to be set aside. Something to keep in mind when engaged in writ practice in a fast-moving and still developing case.

Writ granted, but only to require the trial court to correct its basis for denying the motion to quash.

The ESI Dream of the '90s Is Alive in State Court

Vasquez v. Cal. Sch. of Culinary Arts, No. B250600 (D2d2 Sept. 26, 2014)

In responding to a business records subpoena for student loan files, Sallie Mae jerked around some plaintiff lawyers and was cagey about the cost and burden of compliance. After Sallie Mae’s motion to quash was denied, the trial court awarded about $20k in sanctions because its resistance was not substantially justified.  In an opinion that addresses Code of Civil Procedure § 1985.8—rarely cited in any opinion—the court affirms.

The court first notes that the fact that a subpoena seeks ESI from a third party does not automatically make it unduly burdensome.  (Because it’s not, like, 1990!)  It also rejects Sallie Mae’s argument that “documents” didn’t exist because the information was contained in an electronic database and producing what plaintiffs wanted would entail the creation of “new” documents. That the court's reasoning is based on a 2006 federal district court case—there is no California authority on point—is itself telling on the discouraging state of the state of the art on ESI discovery law in California state court.
 
So the rule is that if you want database information from a third party, you can get it, so long as it is maintained in a way that, even with some work, it can be extracted from the database.  You do, however, have to pay the costs of extraction.  On the other hand, the third party is obliged to provide a reasonable estimate of the costs of compilation. And if the third refuses to do so and acts unreasonably, it will subject to sanctions for a lack of substantial justification.
 
Affirmed.

Clearing the Decks.

So regular readers (should you exist) might have noticed that my posting frequency has gone craptastic over the last couple weeks.  That’s what expedited cases do to a guy. Maybe more about that later. 
 
I’ve fallen rather behind. In an effort to remain comprehensive—I believe that I’ve hit every published case of procedural significance from the get-go—I'm going to have to run through things a little shorter than ordinary. Over the next couple posts I am going to give be more summary capsules than either the general write ups or the occasional deeper analysis I’ve tried to provide. 

Show Me the Metadata!

Ellis v. Toshiba America Information Systems, Inc., B220286 (D2d1, as amended, Sept. 10, 2013).

  

The underlying action in this case—a consumer product class action over defective Toshiba laptops—was settled in a coupon settlement that was granted final approval in May 2007. But that is not the subject of the appeal. In the ensuing six years, the defendant and one of the plaintiff lawyers engaged in a protracted battle over the attorney’s request for $24.7 million in attorneys fees. Because the attorney didn’t keep good records, disobeyed the court’s orders in the fee litigation, and falsified the record on appeal, the ultimate result was an award of appellate sanctions, the affirming of significant discovery sanctions awarded by the trial court, the limitation of the fee award to costs and fees incurred by staff, and a referral to the state bar.