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.
