Case Law: Bower v. Bower

Friday, June 3, 2011 by Thought Leadership Team

Court Finds SCA Prohibits Third Party Production of E-mails, Declines to Imply Consent

Bower v. Bower, 2011 WL 1326643 (D. Mass. Apr. 5, 2011). In this tort litigation relating to the alleged abductions of the plaintiff’s minor children, the plaintiff sought to compel Yahoo! and Google to comply with a third party document subpoena and to compel the defendant to consent to the production of e-mails. Agreeing with Yahoo! and Google that the Stored Communications Act (SCA) barred the requested production absent the defendant’s consent and finding no exception requiring compliance with a civil subpoena, the court denied the motion to compel. The court cited case law that supported ordering consent as a sanction for failure to comply with a Fed.R.Civ.P. 34 document request, however, it found no support to order consent for failure to respond to a motion to compel consent. Further, the court disregarded the plaintiff’s argument that the defendant’s fugitive status should be sufficient to order consent and distinguished this case from those where an implied agreement has been found in light of affirmative participation in the judicial process. Based on this analysis, the court declined to find anything in the defendant’s actions (or status as a fugitive) from which to imply consent to disclose her information.


The Stored Communications Act, 18 U.S.C. § 2701 et seq. (1986) prohibits Electronic Communication Service (ECS) and Remote Computing Service (RCS) providers from knowingly divulging the contents of a communication it stores unless the divulgence is to an intended recipient of such communication or express permission from the sender is obtained. Congress passed the Stored Communications Act (SCA) in 1986 as part of the Electronic Communications Privacy Act. “The SCA was enacted because the advent of the Internet presented a host of potential privacy breaches that the Fourth Amendment does not address.” Cripsin v. Audigier, Inc., 2010 WL 2293238 (C.D. Cal. May 26, 2010) (citing Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892, 900 (9th Cir. 2008).

However, there have been instances where the SCA was circumvented through alternative means. In Flagg v. City of Detroit, the Eastern District of Michigan rejected the defendants’ reading of the SCA that the statute wholly precludes the production of electronic communications stored by a non-party service provider in civil litigation. Further, the court found that possession that possession for purposes of requiring production includes control over the information, which defendants maintained through its contractual relationship with the non-party service provider. However, the court was willing to modify the means of production – holding that the third party subpoena was unnecessary – and instead the court ordered the plaintiff to file a Fed.R.Civ.P. 34 production request.

Many believe the SCA is outdated and in need of a serious “facelift” to more accurately address the technological issues prominent in modern society; after all, the law was enacted in the mid-80’s when computers were just beginning their popularity. The outdated nature of this law is clearly seen in cases discussing the discoverability of social networking sites. In Crispin, the court found that with respect to private messages, social networking sites acted as both ECS and RCS providers, and the SCA prohibited disclosure of privately stored information. However, there was no clear answer with regard to content that is considered “public” on these sites. The court remanded the case to determine if social networking site providers are required to comply with subpoenas for publicly stored information such as wall postings, status updates, etc. (decision remains pending).