Case Summary
Flagg v. City of Detroit, "Flagg II", 2008 U.S. Dist. LEXIS 64735 ( E.D. Mich. Aug. 22, 2008).
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Whether discovery through a subpoena of copies of customer text messages held by a text messaging service provider was barred by the Stored Communications Act remained an open question after the court ordered plaintiff to convert its subpoena to a Fed. R. Civ. P. 34 request to defendants for production of documents held by the service provider but effectively under defendants’ control.
The court in an action concerning alleged concealment of evidence about the death of plaintiff’s mother ordered a text messaging service provider used by the City of Detroit to respond to a subpoena from plaintiff for copies of text messages to or from 34 City employees, including the City’s mayor and his wife. Flagg v. City of Detroit, 2008 U.S. Dist. LEXIS 21923 (E.D. Mich. Mar. 20, 2008). As review by two magistrates of text messages held by the provider began in order to determine which messages should be produced, the city and the Mayor and his chief of staff filed motions to have the process halted. They argued in the motions that the Stored Communications Act, 18 U.S.C.S. § 2701, barred production in civil litigation of electronic communications stored by a non-party service provider.
The court concluded that production of the text messages stored by the non-party service provider should be resumed. According to the court, acceptance of the position of the city that the Act barred compliance with the subpoena would mean that all electronic communications could be shielded from discovery simply by storing the computerized communications with a service provider. The Act did prohibit those who provide "an electronic communication service to the public" from knowingly disclosing the contents of a communication while in electronic storage by that service. 18 U.S.C.S. § 2702(a)(1). Also, § 2702 contained no exception to allow disclosure pursuant to court order or subpoena. However, the issue of application of § 2702 to a subpoena to a third party service provider did not have to be decided because the City effectively had "control" over the stored text messages. Plaintiff thus could obtain the messages with standard discovery requests to the city. The court directed plaintiff to reformulate its subpoena to the provider into a document request to the City for documents held by the provider but under the "control" of the City.
The court in an action concerning alleged concealment of evidence about the death of plaintiff’s mother ordered a text messaging service provider used by the City of Detroit to respond to a subpoena from plaintiff for copies of text messages to or from 34 City employees, including the City’s mayor and his wife. Flagg v. City of Detroit, 2008 U.S. Dist. LEXIS 21923 (E.D. Mich. Mar. 20, 2008). As review by two magistrates of text messages held by the provider began in order to determine which messages should be produced, the city and the Mayor and his chief of staff filed motions to have the process halted. They argued in the motions that the Stored Communications Act, 18 U.S.C.S. § 2701, barred production in civil litigation of electronic communications stored by a non-party service provider.
The court concluded that production of the text messages stored by the non-party service provider should be resumed. According to the court, acceptance of the position of the city that the Act barred compliance with the subpoena would mean that all electronic communications could be shielded from discovery simply by storing the computerized communications with a service provider. The Act did prohibit those who provide "an electronic communication service to the public" from knowingly disclosing the contents of a communication while in electronic storage by that service. 18 U.S.C.S. § 2702(a)(1). Also, § 2702 contained no exception to allow disclosure pursuant to court order or subpoena. However, the issue of application of § 2702 to a subpoena to a third party service provider did not have to be decided because the City effectively had "control" over the stored text messages. Plaintiff thus could obtain the messages with standard discovery requests to the city. The court directed plaintiff to reformulate its subpoena to the provider into a document request to the City for documents held by the provider but under the "control" of the City.
