Court’s ruling on electronic data (by Gunster)

Gunster lawyers Joseph L. Raia and Michael B. Green recently obtained a seminal decision from a California Appeals court ruling that courts can compel Google to produce emails of an account holder, where the account holder gave lawful consent to the disclosure. 

The court rejected Google’s argument that the Stored Communications Act (18 U.S.C. § 2702), (1) gave Google the discretion to refuse to disclose the email, despite the account holder’s consent; and, (2) shielded Google from all civil discovery subpoenas. In a thoughtful and well-reasoned opinion, the court accepted Gunster’s analysis of the statute and explained that the lawful consent of the account holder excused Google from the statute’s prohibition against disclosure. The court distinguished the many cases ruling that civil discovery subpoenas were not an enumerated exception to the prohibitions in the SCA. The court also accepted Gunster’s argument that a court can compel an account holder to provide lawful consent to the disclosure of emails. An account holder cannot prohibit disclosure of relevant evidence by putting the evidence in an email account and then refusing to voluntarily disclose the email.

The decision expands the conversation on rights to electronic data, including who controls that data, in the post-Snowden era, and may have broader implications for other stored communications providers, including Facebook, AOL and the like.