Discovery Resources

Storing electronic communications, such as text messages, with a third-party does not remove a party’s discovery obligation to produce relevant, non-privileged electronic communications within its control, custody or possession.

By Liza Montesano

Flagg v. City of Detroit, 253 F.R.D. 346 (E.D. Mich. 2008).

Employees Implicated:  Various city employees and officials.

eLesson Learned:  The content of text messages and other electronic communications sent in similar ways over an employer-provided system are probably not private!  Furthermore, employers and employees alike cannot prevent discovery of such messages by merely having a third-party maintain storage of these communications.

This case has all the elements of a dramatic made-for-TV movie: an exotic dancer, murdered several months after she supposedly “performed” at the home of the city mayor, and her grieving family, claiming that the police concealed evidence and inadequately investigated the murder as a result of the dancer’s link to the mayor’s rumored party. (Flagg v. City of Detroit, 2006 U.S. Dist. LEXIS 62047 (2008)). At the heart of this TV drama, however, exists a controversial and emerging issue in electronic discovery—the discoverability of text messages stored by a third-party service provider.

So how did we get here?

On behalf of the dancer’s son, the child’s father brought a civil suit against a number of officials and employees of the City of Detroit.  In an effort to establish the alleged shortcomings of the murder investigation, the son filed a subpoena seeking to obtain the contents of text messages sent between 34 named employees and officials.  The subpoena, however, was served upon SkyTel, Inc., the company that provided the service used by the City to send such messages.  As should come as no surprise, the defendant officials and employees challenged the subpoena. 

The Defendants get “cute”

Defendants challenged the subpoena under the Stored Communications Act (“SCA”) (18 U.S.C.S. § 2701 et seq.) which generally prevents a qualifying company from “knowingly divulging” any communications that are stored electronically on behalf a customer.  The SCA does, however, provide for certain exceptions.

The Defendants’ interpretation of the SCA would establish a broadly sweeping prohibition on the discovery of electronic communications in civil cases and would allow a party to defeat a discovery request by merely storing the communications with a third party.

 

Not so fast…

On the surface, the Defendants appear to have raised a valid argument in favor of their position—the SCA prevents SkyTel from “divulging” the contents of any of the stored text messages, and as a result, SkyTel cannot turn over the information requested in the subpoena without violating the statute.  As “logical” as this may sound, however, the court analyzed this argument thoroughly and ultimately rejected it for several reasons.

The Federal Rules of Civil Procedure create an obligation for the City of Detroit to make its stored messages available.

Plaintiff tried to obtain the contents of text messages through the use of a subpoena under Fed. R. Civ. P. 26(b)(1) which would require SkyTel to provide the stored messages directly to the Plaintiff.  This process raised difficult issues with regard to the SCA, and instead, the court considered the case as if the Plaintiff had submitted a discovery request under Fed. R. Civ. P. 34.  This request would require SkyTel to provide the stored messages directly to its former client, the City of Detroit, and then the City itself would be obligated to produce the messages. 
The choice of federal rule is important, and here’s why.  According to the court’s interpretation, the SCA applies differently depending upon the party to whom the information is “divulged.”  If SkyTel turns over the stored messages directly to the Plaintiff (an outside party for purposes of the service contract), this would constitute “divulging,” but SkyTel does not “divulge” within the meaning of the SCA where it merely retrieves and forwards a message to the service customer.

Furthermore, Fed. R. Civ. P. 34 places an obligation on the relevant party to produce items, including stored electronic communications, within its control, custody or possession.  Where the party has a legal right to acquire an item upon demand, the item is within the party’s control. Bad news, City of Detroit.  The City, itself, asserted its ability to consent to SkyTel’s production of the text messages but expressed its desire to withhold such consent.  Because the City has the ability to prevent production by withholding consent, it must also have the ability to permit disclosure by giving its consent.

The City cannot hide behind the SCA’s non-disclosure provisions and avoid theobligation of disclosure merely because a third-party maintained storage of the messages.

 

The court considered the possible exceptions to the general non-disclosure prohibition and found as follows.  SkyTel may not “divulge” communications if it lacks authority to access the messages for purposes other than storage or processing.  Where the service contract allows SkyTel to retrieve messages at the City’s request, it has access authority and falls outside of this provision’s prohibition.  Furthermore, “divulging” is permitted where necessary to the provision of service, and because stored messages are of no use to the City if it is unable to access them, retrieval is necessarily incident to service.

Finally, even if the court gives merit to Defendants’ argument that legal consent is required to avoid violating the SCA, under Fed. R. Civ. P. 34, the City has an obligation to obtain the necessary consent, either from the City itself or from individual employees, that would permit SkyTel to retrieve communications and forward them to the City.  In fact, the court notes that the City employees may have already given implied consent to disclosure because they were subject to repeated and extensive advisements that the City had the right to access the communications and that any messages sent over the system were public information and property of the City.

The Outcome

            The court ultimately declined to address the issue of text message discoverability in the context of a third-party subpoena, and instead ordered the Plaintiff to make a discovery request pursuant to Fed. R. Civ. P. 34.  The court ruled thattext messages produced pursuant to such request would be reviewed by two magistrate judges, according to a protocol established in an earlier stage of the proceeding, to determine which messages were relevant and non-privileged and thus discoverable.

A final “word to the wise”

In its analysis, the court took care to point out that any messages exchanged between officials or employees that related to the murder investigation were classified as “governmental” communications, and none of the defendants had the ability to claim that such messages were private or personal.

Liza Montesano is a third-year law student at Seton Hall Law School and a Senior Editor of the Seton Hall Law Review. 

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