Theofel

We consider whether defendants violated federal electronic privacy and computer fraud statutes when they used a “patently unlawful” subpoena to gain access to email stored by plaintiffs’ Internet service provider.

Background

Plaintiffs Wolf and Buckingham, officers of Integrated Capital Associates, Inc. (ICA), are embroiled in commercial litigation in New York against defendant Far-ey-Jones. In the course of discovery, Far-ey-Jones sought access to ICA’s e-mail. He told his lawyer Iryna Kwasny to subpoena ICA’s ISP, NetGate.

Under the Federal Rules, Kwasny was supposed to “take reasonable steps to avoid imposing undue burden or expense” on NetGate. Fed.R.Civ.P. 45(c)(1). One might have thought, then, that the subpoena would request only e-mail related to the subject matter of the litigation, or maybe messages sent during some relevant time period, or at the very least those sent to or from employees in some way connected to the litigation. But Kwasny ordered production of “[a]ll copies of emails sent or received by anyone” at ICA, with no limitation as to time or scope.

NetGate, which apparently was not represented by counsel, explained that the amount of e-mail…