Subpoenas Seeking E-Mails Meet Resistance

By Tresa Baldas
The National Law Journal

Civil litigants are increasingly trying to get their hands on e-mails to prove their cases, but Internet service providers are starting to challenge their subpoenas — and courts are starting to rule in their favor.

The range of litigants seeking e-mail content include divorcing couples, defamation victims and those involved in trade secrets disputes, say Internet and data-protection attorneys.

But the subpoenas are costly and upsetting to customers of Internet service providers who want privacy.

“For years, courts just assumed that e-mail was discoverable and viewable, and it looks to me like courts are changing direction and questioning that position,” said Ted Claypoole of the Charlotte, N.C., office of Womble Carlyle Sandridge & Rice, who represents ISPs.

“Most ISPs obviously want to protect their customers if they can, because their customers are who keep them in business,” Claypoole said. “But more importantly, they need a clear-cut rule that tells them how they should behave.”

While not exactly a clear-cut rule, ISPs received a boost recently from the U.S. District Court for the Eastern District of Virginia, which denied a State Farm Mutual Automobile Insurance Co. subpoena asking AOL to disclose various e-mails tied to an insurance claim.

The court held that the Stored Communications Act prohibits ISPs from disclosing e-mail contents in response to a civil subpoena. In re Subpoena Duces Tecum to AOL, 2008 WL 1956266 (E.D. Va.).

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