The case of the day is Bower v. Bower (D. Mass. 2011). Bower and El-Nady were divorced. Bower claimed that El-Nady abducted their children from their home in Massachusetts to Egypt. Bower sued El-Nady for interference with custodial relations, negligent infliction of emotional distress, loss of consortium, false imprisonment, and intentional infliction of emotional distress. El-Nady defaulted.
Bower issued subpoenas to Yahoo! and Google, seeking discovery of the content of El-Nady’s emails. Both Yahoo! and Google refused to comply with the subpoenas on the grounds that under the Stored Communications Act they could not produce the content of the emails. We have seen the Stored Communications Act before, notably in the discussion of CTB v. Twitter, the case of the day from May 23, 2011, and In re Toft, the case of the day from August 1, 2011. Bower sought to avoid the SCA by arguing that because El-Nady was a fugitive from justice (the government charged her with international parental abduction, although it does not appear that she has been indicted; INTERPOL has issued a red notice for her as well), she had implicitly consented to production of the emails. The court rejected the notion that El-Nady’s status as a fugitive implied that she had consented to release of the emails. It noted that Bower could proceed by a discovery request aimed at El-Nady, and that she could be subject to appropriate discovery sanctions for refusing to turn over the emails.
The court’s decision is plainly correct under the SCA, though no doubt unsatisfying to Bower, given that the threat of discovery sanctions against El-Nady is probably meaningless given that she has defaulted. Unfortunately, Egypt is not a party to the Hague Convention on the Civil Aspects of Child Abduction, making the situation even worse for Bower.
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