In Optiver Australia v. Libra Trading, 2013 WL 256771 (N.D.Cal.), the plaintiff, Optiver, filed suit in Australia, alleging its former employee stole proprietary information and disclosed such to his new employer, the defendant. In response to plaintiff eDiscovery requests, defendant produced email threads, but plaintiff suspected key emails were missing and had been deleted by defendant. As the missing emails were sent to and from “gmail” accounts, plaintiff sought to obtain the missing emails from Google, who hosts gmail. The Australian court granted the plaintiff leave to file in the U.S. courts to obtain electronic data from Google.
Plaintiff filed pursuant to 28 U.S.C. § 1782 to obtain discovery through the U.S. for a foreign proceeding, and sent a subpoena. The exact language of the subpoena is important, as the plaintiff sought: “Documents sufficient to identify the recipient(s), sender, subject, date sent, date received, date read, and date deleted of emails, email attachments, or Google Talk messages that contain either of the terms “PGP” or “Optiver) sent or received between [certain dates] for the following email addresses: (email addresses deleted).”
Defendant moved to quash the third-party subpoena, citing it violated the Stored Communications Act (“SCA”).
The SCA, passed in 1986 at the advent of the internet age, states “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.” “Contents” is defined by the SCA as “any information concerning the substance, purport, or meaning of that communication.”
Does this subpoena violate the SCA? What other recourse might plaintiff have, if their allegations that defendant purposely deleted important emails that a third-party might have access to? More on Optiver, the SCA and the district court’s decision in our next blog.