<b><i>Online Extra</b></i> Court Says Google Can't Withhold Private e-Mails if Consent is Given

Google Inc. does not have the discretion to refuse to produce emails from a private account once the account holder has given express consent, a California appellate court ruled in a lawsuit stemming from a Florida-based civil action.

In a case of first impression, California's Sixth District Court of Appeal, ruling in a matter from Santa Clara Superior Court, rejected Google's argument that the federal Stored Communications Act (SCA) gave the search engine provider discretion when it came to complying with a client's explicit request.

'Google asserts that even when a user expressly consents to disclosure, a civil subpoena is ineffectual to compel them to produce stored content because, 'the SCA places email content,' when sought from a service provider, 'outside the scope of civil discovery,” wrote presiding Justice Conrad Rushing.

Rushing was addressing a dispute that arose because of a Miami-Dade Circuit lawsuit filed in March 2011 by Navalimpianti USA Inc. against Matteo Negro, a former officer of the company.

Navalimpianti's lead attorney, Joe Raia of Gunster in Miami, said his client manufactures life safety appliances for ships. Negro and several other officers are alleged to have committed numerous torts, including breaches of fiduciary duty, when they left the company to establish Bianchi & Cechi Services Inc., another Miami company that became an instant competitor.

When Navalimpianti sued, the company tried to obtain Negro's Google-based email records because that was the account he used to conduct business communications, Raia said. In June 2012, Navalimpianti asked the Miami-Dade Circuit for authority to take Google's deposition, but the court declined, stating that was an issue that should be decided in California.

Reciting the history of the California case, Rushing said both Negro and Google objected to the subpoena, claiming it was prohibited by the SCA. California Superior Court Judge James Stoelker turned Negro and Google down, reasoning that the Florida court had authority to require Negro's consent. Negro obtained a stay in October 2013 from the Sixth Appellate District.

However, by the time Negro got the stay in California, Miami-Dade Magistrate Elizabeth Schwabedissen had heard Navalimpianti's motion and on Aug. 19, 2013, denied Negro's petition to quash and directed production of the email messages.

Negro was then back in California, resisting the Florida order on grounds that his consent message to Google did not constitute 'lawful consent' because it was 'judicially coerced.'

Rushing said parties in Negro's situation should not be permitted to 'threaten to hold a provider liable for disclosures to which they have explicitly consented. Certainly they should not be able to play two courts off against each other by contending that the 'judicial coercion' practiced by one of them deprives the other of the power to enforce an otherwise lawful subpoena.'

Rushing said there was nothing novel about courts using coercion of some sort ' such as fines or a default judgment ' to compel discovery.

Google's Discretion

Google contends the language of the SCA makes the consent exception in the law permissive and a search engine provider's disclosure under it voluntary.

In Google's view, Rushing noted, the SCA allows but doesn't require disclosure, 'so that Google may not be compelled by an order issued in a civil proceeding to disclose content, even with the user's consent.'

Rushing said Google's reliance on one reference of discretion in the law was too slender a reed to overcome the law's primary mandate ' that a service provider 'shall not' knowingly disclose protected materials.

'In such a context all 'may' means is that the actor is excused from the duty, liability or disability otherwise imposed by the prohibition,' Rushing said.

The appellate panel concluded there was no sound basis for the proposition that the law empowers service providers to defy civil subpoenas seeking discovery of materials that are excepted from the act's prohibitions on disclosure.

Gunster attorney Michael B. Green is co-counsel on Navalimpianti's Florida case. Richard Idell of Idell & Seitel in San Francisco represented the company in California.

Jeffrey Baruh and Joanne Wendell of Adleson, Hess & Kelly in Campbell, CA, represented Negro in California.

Adolfo Pesquera is a reporter with the Daily Business Review, an ALM sibling of e-Commerce Law & Strategy, in which this article originally appeared. He can be reached at 954-468-2616.

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Google Inc. does not have the discretion to refuse to produce emails from a private account once the account holder has given express consent, a California appellate court ruled in a lawsuit stemming from a Florida-based civil action.

In a case of first impression, California's Sixth District Court of Appeal, ruling in a matter from Santa Clara Superior Court, rejected Google's argument that the federal Stored Communications Act (SCA) gave the search engine provider discretion when it came to complying with a client's explicit request.

'Google asserts that even when a user expressly consents to disclosure, a civil subpoena is ineffectual to compel them to produce stored content because, 'the SCA places email content,' when sought from a service provider, 'outside the scope of civil discovery,” wrote presiding Justice Conrad Rushing.

Rushing was addressing a dispute that arose because of a Miami-Dade Circuit lawsuit filed in March 2011 by Navalimpianti USA Inc. against Matteo Negro, a former officer of the company.

Navalimpianti's lead attorney, Joe Raia of Gunster in Miami, said his client manufactures life safety appliances for ships. Negro and several other officers are alleged to have committed numerous torts, including breaches of fiduciary duty, when they left the company to establish Bianchi & Cechi Services Inc., another Miami company that became an instant competitor.

When Navalimpianti sued, the company tried to obtain Negro's Google-based email records because that was the account he used to conduct business communications, Raia said. In June 2012, Navalimpianti asked the Miami-Dade Circuit for authority to take Google's deposition, but the court declined, stating that was an issue that should be decided in California.

Reciting the history of the California case, Rushing said both Negro and Google objected to the subpoena, claiming it was prohibited by the SCA. California Superior Court Judge James Stoelker turned Negro and Google down, reasoning that the Florida court had authority to require Negro's consent. Negro obtained a stay in October 2013 from the Sixth Appellate District.

However, by the time Negro got the stay in California, Miami-Dade Magistrate Elizabeth Schwabedissen had heard Navalimpianti's motion and on Aug. 19, 2013, denied Negro's petition to quash and directed production of the email messages.

Negro was then back in California, resisting the Florida order on grounds that his consent message to Google did not constitute 'lawful consent' because it was 'judicially coerced.'

Rushing said parties in Negro's situation should not be permitted to 'threaten to hold a provider liable for disclosures to which they have explicitly consented. Certainly they should not be able to play two courts off against each other by contending that the 'judicial coercion' practiced by one of them deprives the other of the power to enforce an otherwise lawful subpoena.'

Rushing said there was nothing novel about courts using coercion of some sort ' such as fines or a default judgment ' to compel discovery.

Google's Discretion

Google contends the language of the SCA makes the consent exception in the law permissive and a search engine provider's disclosure under it voluntary.

In Google's view, Rushing noted, the SCA allows but doesn't require disclosure, 'so that Google may not be compelled by an order issued in a civil proceeding to disclose content, even with the user's consent.'

Rushing said Google's reliance on one reference of discretion in the law was too slender a reed to overcome the law's primary mandate ' that a service provider 'shall not' knowingly disclose protected materials.

'In such a context all 'may' means is that the actor is excused from the duty, liability or disability otherwise imposed by the prohibition,' Rushing said.

The appellate panel concluded there was no sound basis for the proposition that the law empowers service providers to defy civil subpoenas seeking discovery of materials that are excepted from the act's prohibitions on disclosure.

Gunster attorney Michael B. Green is co-counsel on Navalimpianti's Florida case. Richard Idell of Idell & Seitel in San Francisco represented the company in California.

Jeffrey Baruh and Joanne Wendell of Adleson, Hess & Kelly in Campbell, CA, represented Negro in California.

Adolfo Pesquera is a reporter with the Daily Business Review, an ALM sibling of e-Commerce Law & Strategy, in which this article originally appeared. He can be reached at 954-468-2616.

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