LAWFUEL – The Legal Newswire – With the enduring popularity of web-based mail services like Hotmail, Yahoo! Mail and Google’s Gmail, it’s hardly surprising that courts have found themselves considering requests in civil lawsuits for electronic discovery of e-mail messages.
But with many people using these sites for both work and personal business, the scope of such requests can lead to disputes over what responsibilities the web-mail providers have to respond to subpoenas.
For example, North Billerica attorney Jenny J. Liu is currently representing a party in a civil dispute that is in the discovery phase. The other side, she said, originally requested her client’s e-mails pertaining to the case, which she produced, including messages sent from the client’s Gmail account.
“Then, without any notification, I received a copy of a subpoena the other side sent to Google … for all e-mails sent to and received by my client’s personal e-mail account,” said Liu. “My client used that e-mail account partially for business, but mostly for personal use — and to communicate with me.”
Liu filed an emergency order to quash the subpoena, which is pending in Middlesex Superior Court.
Just because a party intermingles personal and business e-mails, the personal e-mails should not be discoverable, according to Boston attorney Jonathan Sablone, who frequently handles e-discovery issues.
“If I subpoena someone’s Gmail account, I’m not entitled to the entire content of the account, just the e-mails related to the litigation,” Sablone said. “It’s just like if you kept personal bills in a desk drawer along with business bills; those personal bills still wouldn’t be producible.”
Thanks to regulations such as Sarbanes-Oxley, businesses are frequently required to retain old e-mails on their servers — even those a user thinks he has deleted. But accessing old web-mail messages from a personal account can be more difficult, according to Sablone.
“In my experience, getting e-mails [directly from] a web-based provider is very difficult in a lot of ways,” he said, noting that if the e-mails have been deleted, the web-mail providers do not keep their data “hanging around on servers for very long.”
Sablone added: “Does Google keep a backup tape of deleted e-mails floating around somewhere? Even if they do, it would be very expensive and time consuming to go through them, so they tend to put up all sorts of defenses and fight subpoenas [from civil litigants] tooth and nail.”
Even if the account remains active and the e-mails have not been deleted, web-mail providers often resist turning over contents of an account, Sablone said.
But Liu said her client was notified by Google that, unless the client objected, Google would turn over the e-mails to the opposing side.
Liu said her client was told it could file a motion to quash the subpoena.
Some parties might not understand such a notice, said Liu, resulting in Google “just going ahead and producing” the messages despite the wishes of the e-mail account holder.
Liu said her motion to quash cited the Electronic Communications Privacy Act, which forbids parties from accessing or distributing e-mail messages without the account holder’s permission. She also cited privacy and attorney-client privilege issues.
Sablone said he thinks it is “highly unlikely” that Google will start turning over e-mails every time one of its users is involved in a civil dispute, instead telling courts that doing so would be an undue burden for a third party.
