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Contrary to popular belief, AOL is still an internet service provider and has recently made itself relevant again. During the Hurricane Katrina litigation in McIntosh v. State Farm Fire & Casualty Co., two non-party witnesses discovered what they believed to be fraud on behalf of State Farm.
During the course of discovery, State Farm (defendant) issued a subpoena to AOL requesting the e-mails of the two non-party witnesses. The non-party witnesses moved to quash the subpoena and the magistrate judge granted the motion to quash. (Motion to quash a subpoena is just a fancy way to say “No” to giving over the information requested in the subpoena). Defendant filed objections to the judge’s quash order, which brought the issue before a District Court judge.
In upholding the order to quash the subpoena on AOL requesting emails from the non-party witnesses, the district judge recounted three problems with defendant’s subpoena. First, in drafting the subpoena, outside counsel did not properly take into account the statutory language of the Privacy Act. §2702 of the Act lists unambiguous exceptions that allow internet service providers to disclose e-mails. The exceptions are for governmental entities that are involved in criminal investigations. Case law has shed light on situations involvingcivil litigation in which the courts have strongly held that there is a zone of privacy for the internet subscribers. Basically, the non-party witnesses had a right to believe that their e-mails sent from the AOL accounts were private and that some company, like the defendant, couldn’t simply ask for them.
Secondly, the district judge found that the subpoena was not adequately narrowly tailored to meet the burden required. The subpoena was overbroad in asking for all of the e-mails from the witness’s AOL accounts for a six-week period. Over that six-week period there would likely be multiple privileged e-mails as well as personal and irrelevant e-mails. Even if there was some exception under the Privacy Act, the defendant shouldn’t be given access to the witness’s personal e-mails. Outside counsel that drafted the email should have limited the subpoena to the e-mails that would be relevant in the McIntosh litigation only.
Finally, the district judge affirmed the magistrate judge’s decision that the presiding judge in the McIntosh litigation would be better suited to determine which e-mails were privileged. While there may still be an issue whether a valid exception existed under the Privacy Act, the problems with privilege and the undue burden of the amount of e-mails requested were careless mistakes that could have been avoided.
Chrissy Caputo, a current Seton Hall University School of Law student (Class of 2013), focuses her studies in the area of labor and employment law. Prior to law school, she was a 2010 graduate of Lafayette College earning a B.A. with concentrations in History, Government and Law.