Discovery of text messages under the Stored Communications Act

December 16th, 2008 | By Steve Puiszis

Illinois hasn’t cornered the market on politicians charged with wrongdoing, lately it only seems that way. Want to know your opponents can obtain the text messages that can get your clients into trouble? Here’s how:  Flagg v.City of Detroit, 252 F.R.D. 346 (E.D. Mich. Aug. 22, 2008).

Flagg has been listed by one e-discovery blog as one of the top 5 e-discovery decisions of 2008.  

No, this is not the decision involving the text messages between the former Mayor of Detroit and his female chief of staff that were purportedly more tawdry and explicit than an old Harlequin romance novel.  Flagg involved a wrongful death action and the text messages being sought related to a possible cover-up and interference of an investigation involving the murder of an exotic dancer who allegedly performed at a party at the Mayor’s official residence. 

The case is significant because in ordering that the text messages could be produced, the district court outlined several ways to get around the Stored Communications Act, 18 U.S.C. 2701.  Section 2702 of the Act generally prohibits a person or entity providing an “electronic communication service” (ECS) or a “remote computing service” (RCS) from knowingly divulging to any person or entity the contents of a communication while in “electronic storage” by that service or which is “carried or maintained on that service.”  A service provider can divulge contents of an electronic communication with the consent of an appropriate party.  Who can provide that consent varies depending upon if the service provider is an “ECS” or “RCS” provider.  In the case of an RCS provider, a “subscriber,” like the City, can provide the required consent.  With an ECS provider, only “the originator or an addressee or intended recipient” of the message (in this case, city employees and officials) can lawfully consent to the release.  

In reaching the conclusion that the text messages could be produced, the court in large part  relied on Rule 34′s requirement that a responding party produce not only documents in its possession, but also documents under the responding party’s “custody and control.”  The court pointed to cases holding that documents in the possession of a party’s agent or attorney are considered under the responding party’s control.  The court noted that a corporate party is deemed to have control over documents in the possession of its officers or employees.  Thus, the court in Flagg concluded that irrespective of whether the service provider was deemed to be and ECS or RCS provider, the City had both the ability and the obligation to secure any consent required by the Stored Communications Act to obtain release of the text messages – in accordance with a protocol which the court had previously set up to screen the text messages for relevancy and/or  privilege.

So one “take away” from this case is to remember that whenever you are seeking to preserve paper documents or electronic data through a litigation hold and/or  when certifying that a production response is complete under Fed. R. Civ. P 26(g) by signing that response, don’t overlook information in the possession of a third party which your client controls.

Flagg bears mentioning another reason. The district court in Flagg concluded that the service provider was an “RCS” as defined under the Stored Communication Act.  In the process of reaching that conclusion, the district court in Flagg disagreed with Quon v. Arch Wireless Operating Co., 529 F.3d  892 (9th Cir. 2008).  The Ninth Circuit’s decision in Quon caught the attention of several commentators for an entirely different reason — Quon held that an employee could claim a reasonable expectation of privacy in his text messages based on his employer’s informal practice which contradicted the city’s policies on internet use and computer use. Quon also addressed whether the release to the City of the text messages sent by members of the city’s “swat team” over city-issued pagers violated the Stored Communications Act.  The Ninth Circuit in Quon found that the service provider’s release of those text messages violated the Act based on its conclusion that the service provider was an “ECS.”  While the district court in Flagg distinguished that aspect of Quon on several different grounds and based its decision on at least one argument which had not been raised in Quon, if you are practicing on our left coast, and run into a question involving the Stored Communication Act, make sure you argue Flagg, but follow Quon.

Flagg also explained that production of text messages pursuant to a third-party subpoena would divulge the content of those communications in violation of the Act unless the appropriate consent was first obtained. The court concluded that a Rule 34 production request provided “a more straightforward path” to the discovery of the text messages.

When the discovery of text messages may be sought in one of your cases, carefully review the Stored Communication Act.  Unfortunately, the statute is far from a model of clarity as the Flagg and Quon decisions aptly demonstrate.

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