The Stored Communications Act and its Consequences for Plaintiff eDiscovery

22 Mar 2013

The proliferation of smartphones for both personal and business use has now blurred the practical distinction between text messages and emails. When plaintiff trial attorneys need electronic data evidence contained within a smartphone, how can they gain access to text or email content and not run afoul of the Stored Communications Act?

The Stored Communications Act

The Stored Communications Act (SCA), 18 U.S.C. § 2701 et seq., was enacted to prohibit telephone and internet service providers from unlawful disclosure of electronic communications:  “A person or entity providing an electronic communications 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.” 18 U.S.C. § 2702(a)(1).

Service providers will typically use the SCA as a shield when attorneys attempt to subpoena them as third-parties regarding the contents of email or text messages. So if the service providers cannot hand over content of emails or text messages in response to plaintiff electronic discovery requests, what type of data is accessible?

Recently, the 5th Circuit Court of Appeals held that a person’s personal or business cell phone was not a “facility” as that term is used in 18 U.S.C. § 2702(a)(1) in which electronic data is stored. Garcia v. City of Laredo, Tex., 2012 WL 6176479 (5th Cir. Dec. 12, 2012). Therefore, text messages and photos stored on the cell phone were outside the protection of the SCA.

What Can Plaintiffs Do When a Defendant Claims Data is Lost?

If plaintiffs are seeking business-related emails, expert computer forensics can uncover deleted or hidden data from a company’s computers, cell phones, hard drives, servers and more. If the plaintiffs are seeking text messages from a smartphone, however, they may run into a problem if the defendant claims to have lost the phone.

This is what happened in Christou v. BEATPORT, LLC, No. 10-cv-02912-RBJ-KMT (D. Co. 2013). The defendant was unable to produce requested text messages after he lost his smartphone. However, since this was after the plaintiffs issued a timely litigation hold letter and ESI requests, the court awarded sanctions to the plaintiffs for evidence spoliation due to defendant’s failure to preserve the data.

Although defendant argued that the text messages contained no relevant messages, the court found that no party will ever know if the text messages contained relevant ESI since the messages were not preserved.  Sanctions may have been the last resort for plaintiffs, as the content of the text messages could not be subpoenaed from the telephone service provider due to the SCA.

Metadata is Not Content Under the SCA and is Discoverable

In Optiver Australia v. Libra Trading, 2013 WL 256771 (N.D.Cal.), plaintiffs sought the content of emails from third-party service provider Google. The court agreed with Google that the content of the emails could not be disclosed due to the SCA. However, the court did order the production of metadata, or “documents sufficient to show the recipient(s), sender, date sent, date received, date read and date deleted of emails…”

Although this case involved metadata of emails, the plaintiffs in Christou might have subpoenaed metadata from the telephone company, which would have then disclosed the dates, times and recipients of the requested text messages.

For more information about uncovering email and text message electronic evidence in civil litigation, contact our plaintiff eDiscovery experts.