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Flagg v. City Of Detroit: The Stored Communications Act and the Discoverability of Text MessagesJanuary 1, 0001
The United States District Court for the Eastern District of Michigan recently addressed the discoverability of text messages in a case involving Detroit’s embattled former mayor, Kwame Kilpatrick. The opinion is notable for its determination that text messages held by a third party service provider may, under certain circumstances, be subject to a request for production of documents under Federal Rule of Civil Procedure 34, notwithstanding the protections offered by the Stored Communications Act, 18 U.S.C. § 2701 et seq. (“SCA”), which seeks to maintain “the privacy of stored Internet communications in the United States” from disclosure by service providers to third parties.
The lawsuit, filed by the minor son of a woman whose 2003 murder remained unsolved, alleged that Detroit officials, including Mr. Kilpatrick, deliberately concealed material evidence, depriving the plaintiff of an opportunity to bring a wrongful death suit. In early 2008 the plaintiff issued two subpoenas to Detroit’s third-party provider of text messaging services, SkyTel, seeking production of messages sent or received by various individuals, including Mr. Kilpatrick and his chief of staff, Christine Beatty. Though the City had discontinued its contract with SkyTel in 2004, SkyTel maintained at least some text messages sent during the relevant period. The court rejected defendants’ motion to quash the subpoenas, instead establishing a protocol under which two magistrate judges would conduct an initial in camera review of SkyTel’s production and determine which communications would be produced.
Ms. Beatty moved to preclude discovery of the communications, arguing that the SCA precludes production in civil litigation of electronic communications stored by a non-party service provider. The court rejected this argument, finding that it would “dramatically alter discovery practice, in a manner clearly not contemplated by the existing rules or law, by permitting a party to defeat the production of electronically stored information created by that party and still within its control…through the simple expedient of storing it with a third party.” The court ordered production of the text messages to go forward as planned, subject to in camera review, but only after plaintiff reissued its demand in the form of Rule 34 production requests directed to the City. In so doing, the court “avoid[ed the] question” of whether the text messages would also need to be produced pursuant to a third-party subpoena.
The court rejected defendants’ argument that the communications raised privacy concerns. Unlike the Ninth Circuit’s holding in Quon v. Arch Wireless Operating Co., which had deemed certain text messages of a city employee to be protected, the court pointed out that no Fourth Amendment concerns were implicated where a private plaintiff—as opposed to a government body—sought production. Moreover, any text messages exchanged between City officials regarding the murder investigation would properly be characterized as governmental, rather than private or personal communications.
Defendants also claimed that Section 2702 of the SCA, which sets forth the specific instances in which a service provider may “divulge the contents of a communication,” did not authorize SkyTel to disclose the text messages in response to the subpoenas. The court found that production in response to a Rule 34 request for production propounded on the City itself would nevertheless be required. Central to the court’s determination was the fact that Rule 34 requests may target information in the responding party’s “control,” and its concomitant finding that the City had control over the requested text messages because, among other things, the City had the authority to block the disclosure of SkyTel messages.
In reaching its holding, the court also focused on an electronic communications policy directive to City employees—signed by Mr. Kilpatrick himself—that they should assume any messages they sent could be “read by anyone,” that all such communications were “property of the City,” and that they were “subject to disclosure.” The court was especially troubled that, in subsequently arguing that the communications were private, such high-ranking officials as Mr. Kilpatrick and Ms. Beatty were taking a position that “threaten[ed] to eliminate an important tool for uncovering government corruption.”
While it remains unclear under what circumstances a third party provider may be required to produce electronic communications in response to a subpoena, Flagg provides new ammunition for a party to seek such communications directly from their source.
 Flagg v. City of Detroit, 252 F.R.D. 346 (E.D. Mich. 2008).
 See Orin S. Kerr, A User’s Guide to the Stored Communications Act, and a Legislator’s Guide to Amending It, 72 GEO. WASH. L. REV. 1208, 1208 (2004).
 252 F.R.D. at 347.
 Id. at 366.
 529 F.3d 892 (9th Cir. 2008).
 252 F.R.D. at 355 (“[I]f the City can block the disclosure of SkyTel messages by withholding its consent, it surely follows that it can permit the disclosure of these communications by granting its consent. This acknowledged power readily qualifies as a ‘legal right to obtain’ the messages held by SkyTel, and hence constitutes ‘control’ within the meaning of Rule 34(a)(1)”) (emphases in original).
 Id. at 364-65. This stands in contrast to Quon, where the employee was assured that his communications would not be monitored. See Quon, 529 F.3d at 907.
 252 F.R.D. at 366.
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