Jottings By An Employer's Lawyer

Thursday, August 28, 2003

Overly Broad Subpoena Leads To Much Bigger Problems Than Just Sanctions

Being hit with $9,000 in sanctions for issuing an overbroad subpoena to an internet service provider of your opponent in litigation would be bad enough, but that is just the start of the problems for a litigant and his counsel. In Theofel v. Farey-Jones (9th Cir. 8/28/03) the Court re-instated a cause of action against the two for violations of both the Stored Communications Act and the Computer Fraud and Abuse Act, as well as related state claims. It did affirm the dismissal of the claim under the Wiretap statute. The opinion is noteworthy not only for its liberal reading of both statutes, but its extensions to litigants for reviewing the email 'voluntarily' provided by the internet service provider. Since the ISP acted only because of an obviously overbroad and invalid subpoena, the Court found it did not serve as a protective shield.

This is a good reminder of both the dangers of aggressive litigation tactics and of venturing into another's email, without making sure of one's justification. A lesson that is a good reminder in these days where the two are often combined.

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