Case of the Day: Thompson v. Doel

The case of the day is Thompson v. Doel (N.D. Cal. 2013). Denise Thompson, plaintiff in an Alberta defamation action, sought leave under 28 U.S.C. § 1782 to serve a subpoena on Google. The claim was that someone had used a Gmail email address to send Thompson’s employer defamatory statements about her. The proposed subpoena sought documents sufficient to identify the names, physical addresses, email address, and media access control address of the owners of the Gmail account.

The judge undertook a simple Intel analysis and found that all of the factors weighed in favor of issuance of the subpoena. Notably, he cited Alberta authority showing that the courts in Alberta will grant document production requests if “necessary to identify wrongdoers.” Thus there was no attempt to circumvent foreign proof-gathering restrictions (though even if Alberta did not allow such discovery, it wouldn’t follow that a § 1782 request seeking such information from Google would be deemed an attempt at evasion).

It’s worth pointing out that because the proposed subpoena did not seek the content of any emails, there was no issue under the Stored Communications Act, which generally precludes subpoenas in civil actions that seek the contents of communications stored on the servers of a provider such as Google.

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Case of the Day: Suzlon Energy v. Microsoft

Today’s case of the day, Suzlon Energy Ltd. v. Microsoft Corp. (9th Cir. 2011), is another case involving the Stored Communications Act. Suzlon brought a judicial assistance application seeking to serve a subpoena on Microsoft for the contents of emails from the Hotmail account of Sridhar, an Indian national, for use in a civil case against Sridhar pending in the Federal Court of Australia. Predictably, Microsoft sought to quash the subpoena on the grounds that under 18 U.S.C. § 2702, it was forbidden to disclose the contents of the emails. The issue in the case was whether foreigners are also entitled to the protections of the statute. After some statutory construction, the Ninth Circuit came to the obvious conclusion—the SCA does indeed cover the email accounts of foreigners.