In re Request for Order Requiring Facebook, Inc. to Produce Documents & Things

Citation Codes

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Docket Number

Case No. C 12–80171 LHK (PSG).

Judges

PAUL S. GREWAL

Acts

Judiciary And Judicial Procedure — Evidence; Depositions — Procedure — Assistance To Foreign And International Tribunals And To Litigants Before Such Tribunals
Crimes And Criminal Procedure — Stored Wire And Electronic Communications And Transactional Records Access — Crimes — Unlawful Access To Stored Communications
Crimes And Criminal Procedure — Stored Wire And Electronic Communications And Transactional Records Access — Crimes — Voluntary Disclosure Of Customer Communications Or Records

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Smart Summary

Factual and Procedural Background

On December 20, 2008, Sahar Daftary died after falling from the twelfth floor of an apartment building in Manchester, England. The local Coroner's Office initiated an inquest to determine the circumstances and cause of her death. Sahar's surviving family members, Applicants Jawed Karim and Anisa Daftary, were invited to provide records showing Sahar's state of mind prior to her death. They believed that Sahar's Facebook account contained critical evidence relevant to the inquest, disputing the conclusion that Sahar committed suicide.

The Applicants filed an ex parte application pursuant to 28 U.S.C. § 1782 seeking leave to subpoena Facebook for records from Sahar's account covering November 20 to December 11, 2008. The court granted the application without prejudice to Facebook's right to move to quash the subpoena. Applicants were ordered to serve Facebook with the order and subpoena. Facebook subsequently moved to quash the subpoena, arguing that it violated the Stored Communications Act (SCA), 18 U.S.C. § 2701 et seq., and alternatively sought an order to establish Applicants' authority to consent on Sahar's behalf to disclosure. The court held a hearing on September 11, 2012.

Legal Issues Presented

Whether a subpoena issued pursuant to 28 U.S.C. § 1782 may compel Facebook to produce electronic communications covered by the Stored Communications Act.
Whether Applicants have the authority to consent on behalf of the deceased account holder, Sahar Daftary, to permit disclosure of her Facebook records.

Arguments of the Parties

Facebook, Inc.'s Arguments

The subpoena violates the Stored Communications Act (18 U.S.C. § 2701 et seq.) which prohibits providers from disclosing electronic communications pursuant to civil subpoenas.
Consent by Applicants on behalf of Sahar cannot compel Facebook to produce records; at most, it permits voluntary disclosure but does not require it.

Applicants' Arguments

Applicants dispute that Sahar committed suicide and contend that Facebook records from the twenty days before December 12, 2008, are critical evidence of her state of mind.
Applicants oppose Facebook's motion to quash and argue that they have authority to consent to disclosure on Sahar's behalf.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Theofel v. Farey–Jones, 359 F.3d 1066, 1074 (9th Cir. 2004)	Recognition of privacy interests protected by the Stored Communications Act that limit compelled disclosure.	Supported the conclusion that civil subpoenas may not compel providers like Facebook to produce records.
In re Subpoena Duces Tecum to AOL, LLC, 550 F.Supp.2d 606, 610–611 (E.D. Va. 2008)	Application of 18 U.S.C. § 2702 to prohibit disclosure of electronic communications pursuant to civil subpoenas.	Confirmed that the SCA contains no exception for civil discovery subpoenas, reinforcing the motion to quash.
Viacom Int'l Inc. v. Youtube, Inc., 253 F.R.D. 256, 264 (S.D.N.Y. 2008)	Held that the SCA prohibits disclosure of electronic communications pursuant to civil discovery requests.	Used to support the court's ruling that the subpoena could not compel production.
Suzlon Energy Ltd. v. Microsoft Corp., 671 F.3d 726, 730 (9th Cir. 2011)	Rejected civil litigation exception to SCA bar on provider disclosures.	Applied to reject the argument that civil subpoenas under Section 1782 differ from other discovery subpoenas in this context.
18 U.S.C. § 2702(b)	Statutory provision allowing providers to divulge contents of communications with lawful consent, but use of "may" implies discretion, not obligation.	Interpreted to mean that consent permits but does not require disclosure, thus Applicants' consent cannot compel Facebook.
United States v. Rodgers, 461 U.S. 677, 706 (1983)	Interpretation of the word "may" in statutes as implying discretion.	Supported the interpretation of the SCA provision that consent allows but does not mandate disclosure.

Court's Reasoning and Analysis

The court analyzed the interplay between the subpoena issued under 28 U.S.C. § 1782 and the protections afforded by the Stored Communications Act (SCA). It noted that civil subpoenas cannot compel providers like Facebook to produce electronic communications because doing so would violate the privacy interests the SCA safeguards. The court reviewed case law addressing subpoenas under both Federal Rule of Civil Procedure 45 and Section 1782 and found no practical distinction between them for purposes of the SCA.

The court rejected the Applicants' argument that their consent on behalf of the deceased Sahar could compel disclosure. Under the plain language of 18 U.S.C. § 2702, while consent may permit a provider to disclose communications, it does not require the provider to do so. The discretionary nature of "may" in the statute was emphasized, supported by Supreme Court precedent interpreting statutory language.

Because the court granted Facebook's motion to quash the subpoena, it declined to rule on whether Applicants have authority to consent on Sahar's behalf, noting that such a ruling would constitute an impermissible advisory opinion. The court left open the possibility that Facebook may voluntarily disclose the records if it independently concludes that Applicants have standing to consent.

Holding and Implications

Holding: The court granted Facebook's motion to quash the subpoena issued under 28 U.S.C. § 1782.

Implications: The direct effect of this decision is that Applicants cannot compel Facebook to produce Sahar Daftary’s electronic communications from her Facebook account for the specified period. The court’s ruling reinforces the protective scope of the Stored Communications Act against compelled disclosure via civil subpoenas, including those issued under Section 1782. No new precedent was established beyond the application of existing SCA principles. The court explicitly refrained from determining the authority of Applicants to consent on Sahar’s behalf, leaving that issue unresolved and subject to Facebook’s discretion for voluntary disclosure.

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In re Request for Order Requiring FACEBOOK, INC. to Produce Documents and Things.

PAUL S. GREWAL

Timothy L. Alger, Perkins Coie LLP, Palo Alto, Ca, Kevan Fornasero, Perkins Coie LLP, San Francisco, CA, for Facebook, Inc.

ORDER GRANTING FACEBOOK, INC.'S MOTION TO QUASH

PAUL S. GREWAL, United States Magistrate Judge.

On December 20, 2008, Sahar Daftary (“Sahar”) died after falling from the twelfth floor of an apartment building located in Manchester, England. As is customary in such a case, the local Coroner's Office is conducting an inquest to determine the circumstances surrounding, and the cause of, her death. Applicants Jawed Karim and Anisa Daftary (collectively, “Applicants”) are Sahar's surviving family members and were invited by the Coroner's Office to provide records showing Sahar's state of mind when she died. Sahar apparently had a Facebook account that she used on a regular basis. Applicants dispute that Sahar committed suicide and believe that her Facebook account contains critical evidence showing her actual state of mind in the days leading up to her death. To that end, Applicants filed an ex parte application pursuant to 28 U.S.C. § 1782 for leave to subpoena records from her Facebook account for the time period from November 20 to December 11, 2008. The order granting the application was without prejudice, however, to Facebook, Inc. (“Facebook”) moving to quash the subpoena. Applicants were ordered to serve a copy of the order along with their subpoena.

Applicants previously applied ex parte to subpoena records from Sahar's Facebook account for the period covering the nine-day period from December 12–20, 2008. Although Judge Lloyd granted their request, see I n re Request for Order Requiring Facebook, Inc. to Produce Documents and Things, Case No. C 11–80190 Misc. LHK (HRL), Applicants now believe that records related to the twenty days preceding that time period are necessary for the Coroner's Inquest.

See Docket No. 8.

See id.

Facebook now moves to quash the subpoena on the grounds that the subpoena violates the Stored Communications Act, 18 U.S.C. § 2701, et seq. (“SCA”). Alternatively, Facebook moves for an order establishing Applicants' authority to tender consent on Sahar's behalf and compelling disclosure of Sahar's Facebook records. Applicants oppose. On September 11, 2012, the parties appeared for hearing. Having reviewed the papers and considered the arguments of counsel,

IT IS HEREBY ORDERED that Facebook's motion to quash is GRANTED.

The case law confirms that civil subpoenas may not compel production of records from providers like Facebook. To rule otherwise would run afoul of the “specific [privacy] interests that the [SCA] seeks to protect.” These cases have considered subpoenas under both Fed.R.Civ.P. 45 and Section 1782, and in any event the court sees no practical difference. It would be odd, to put it mildly, to grant discovery related to foreign proceedings but not those taking place in the United States. Nor is the court persuaded that Applicants' consent on Sahar's behalf distinguishes these precedents so as to justify compelling production. Under the plain language of Section 2702, while consent may permit production by a provider, it may not require such a production. The Applicants subpoena must be quashed.

See Theofel v. Farey–Jones, 359 F.3d 1066, 1074 (9th Cir.2004) (internal citations omitted).

See In re Subpoena Duces Tecum to AOL, LLC, 550 F.Supp.2d 606, 610–611 (E.D.Va.2008) (“Applying the clear and unambiguous language of 18 U.S.C. § 2702 to this case, AOL, a corporation that provides electronic communication services to the public, may not divulge the contents of the Rigsby's electronic communications to State Farm because the statutory language of the Privacy Act does not include an exception for the disclosure of electronic communications pursuant to civil discovery subpoenas”); see also Viacom Int'l Inc. v. Youtube, Inc., 253 F.R.D. 256, 264 (S.D.N.Y.2008) (holding that the SCA prohibits disclosure of electronic communications pursuant to a civil subpoena because the SCA “contains no exception for disclosure of such communications pursuant to civil discovery requests.”).

See Suzlon Energy Ltd. v. Microsoft Corp., 671 F.3d 726, 730 (9th Cir.2011) (rejecting civil litigation exception to SCA bar on provider disclosures of communications).

See 18 U.S.C. § 2702(b) (“A provider described in subsection (a) may divulge the contents of a communication—... (3) with the lawful consent of the originator or an addressee or intended recipient of such communication, or the subscriber in the case of remote computing service”) (emphasis added). See also United States v. Rodgers, 461 U.S. 677, 706, 103 S.Ct. 2132, 76 L.Ed.2d 236 (1983) (“The word ‘may,’ when used in a statute, usually implies some degree of discretion.”).

Having agreed with Facebook that the Section 1782 subpoena should be quashed, the court lacks jurisdiction to address whether the Applicants may offer consent on Sahar's behalf so that Facebook may disclose the records voluntarily. Any such ruling would amount to nothing less than an impermissible advisory opinion. Of course, nothing prevents Facebook from concluding on its own that Applicants have standing to consent on Sahar's behalf and providing the requested materials voluntarily.

IT IS SO ORDERED.
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