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UPDATE: On August 3, 2011, Judge Nancy Gertner denied plaintiff Bower’s appeal of Judge Dein’s denial of plaintiff’s motion for reconsideration, affirming Judge Dein’s initial analysis.  

On May 17, 2011, represented by Nutter McClennen & Fish LLP as local counsel, Google Inc., succeeded in defeating a second attempt by a plaintiff in a civil suit to obtain access to an accountholder’s protected information via a civil discovery subpoena. See Bower v. Bower, et al., No. 10-405 (D. Mass. April 5, 2011). By denying the Bower plaintiff’s motion to reconsider, U.S. Magistrate Judge Dein upheld her previous decision wherein she held that the Stored Communications Act, 18 U.S.C. 2701, et seq. (the “SCA”) precludes electronic service providers such as Google from producing emails in response to civil discovery subpoenas. A copy of the original Memorandum of Decision and Order, dated April 5, 2011, can be found here. 

In denying plaintiff Bower’s motion to compel Google to comply with a third-party document subpoena, Magistrate Judge Dein looked to the text of the SCA, which provides, in pertinent part, that “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.” 18 U.S.C. § 2702(a)(1). Although the statute lists eight specific exceptions to this prohibition, those exemptions do not include responding to a civil discovery subpoena. 18 U.S.C. § 2702(b)(1) -(8). Plaintiff in Bower attempted to argue that, as an alleged fugitive, defendant Bower had implicitly consented to the disclosure of her emails. Magistrate Judge Dein, however, found “nothing in [defendant Bower’s] actions from which [the] court can imply an intent to consent to the disclosure of her information.” Bower, No. 10-405, Memorandum of Decision and Order. Further, since defendant Bower’s allegedly fugitive nature would not have prevented her from defending the underlying action, it could not be used to require disclosure of her protected information. Id.  

Plaintiff Bower’s recent motion to reconsider was yet another attempt to compel Google to produce the protected emails. In his motion, the plaintiff argued unsuccessfully that Google’s subscriber agreements constitute express consent to the production of emails in response to a third-party document subpoena. Plaintiff Bower is now appealing the denial of the motion for reconsideration.

If you would like additional information on this issue, please contact Sarah P. Kelly, or any other member of the Government Investigations and White Collar Defense group at Nutter McClennen & Fish.