Theofel

ORDER

The opinion filed on August 28, 2003, 341 F.3d 978 , shall be amended as follows.

Replace footnote 2, 341 F.3d at 984, with:

Replace the fourth full paragraph, 341 F.3d at 985, with:

The petition for rehearing and rehearing en banc is otherwise DENIED. See Fed. R.App. P. 35; Fed. R.App. P. 40. No further petitions will be accepted.

OPINION

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…