By Steven M. Gutierrez
In Theofel v. Farey-Jones, 359 F.3d 1066 (9th Cir. 2004), the Ninth Circuit Court of Appeals made crystal clear that overreaching discovery requests can subject the attorney and his client to civil claims. The conduct at issue was counsel for Farey-Jones' decision to serve a subpoena, at the request of his client, to the Internet service provider, NetGate, requesting all e-mails ever sent or received by anyone at Integrated Capital Associates, Inc. (“ICA”). Counsel was engaged to defend Farey-Jones in a commercial litigation dispute with Plaintiffs Wolf and Buckingham (who were officers of ICA). The subpoena sought all e-mail, regardless of whether it was related to the subject matter of the commercial litigation, and did not contain a time limitation. Rather, the subpoena requested copies of all e-mail sent and received by ICA.
Though it raised an informal objection, NetGate responded to the subpoena and produced 339 e-mail messages (in what the court described as the “Baskin-Robbins” sampling of a portion of the responsive e-mail). Much of the e-mail was private, personal, and unrelated to the litigation. The e-mail sample was produced without notice to Plaintiffs and Farey-Jones and his attorney read the e-mail prior to the Plaintiffs’ discovery of what had happened.
When they discovered the production, Plaintiffs moved to quash. The Court determined that the subpoena was "massively overbroad" and "patently unlawful" and violated the Federal Rules of Civil Procedure, which requires that attorneys "take reasonable steps to avoid imposing undue burden or expense" on those they subpoena. See Fed.R.Civ.P. 45(c)(1):
A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. . .
The magistrate judge sanctioned Farey-Jones and his attorney with more than $9,000 in sanctions. That wasn’t the end. Plaintiffs filed suit for violation of the Stored Communications Act, the Computer Fraud and Abuse Act, and the Wiretap Act. The District Court dismissed the case, but the Ninth Circuit reversed on two of the three claims -- the claim under Stored Communications Act and the claim under the Computer Fraud and Abuse Act.
In its discussion of the Stored Communication Act (“SCA”), the Ninth Circuit reasoned that Congress intended the SCA to protect a users’ legitimate interest in the confidentiality of communications in electronic storage. The Ninth Circuit concluded that the conduct of Farey-Jones and his lawyer, in gaining access to the communications, through an improper subpoena, was no different than a “busybody who gets permission to come inside by posing as a meter reader.” Farey-Jones and his attorney were likened to trespassers and can be liable for gaining access to protected e-mail with an improper subpoena because the “subpoena's falsity transformed the access from a bona fide state-sanctioned inspection into private snooping."
The Court went on to state that NetGate’s decision not to quash or seek protective order did not insulate Farey-Jones and his attorneys from potential civil liability. The invalidity of the subpoena was not known to NetGate and this mistake went to the essential nature of the invasion of privacy because the subpoenas’ falsity transformed access from a bona fide state-sanctioned inspection into private snooping. Thus, since the subpoena “transparently and egregiously” violated the Federal Rules, and defendants acted in bad faith and with gross negligence in the drafting and deploying it, they can be civilly prosecuted for knowingly obtaining access to a stored communication.
The reversal of the District Court’s order of dismissal is fair warning to all lawyers and clients: Discovery should be conducted with the bounds of reason. The tired reference to the duty of "zealous representation," by lawyers who try and justify their aggressive discovery has been replaced with duties of diligence and competence and a duty to engage in conduct that is professional, courteous and civil toward any person involved in the legal system.
