Many electronic mail service providers object to subpoenas for their users electronic messages, taking the position that a user’s messages are not discoverable in litigation under the Stored Communications Act (“SCA”). That law includes a provision forbidding a service provider from disclosing the contents of e-mails in their possession. An exception to that prohibition exists when the user consents to the disclosure.

A  California court of appeal, whose jurisdiction includes the Silicon Valley, relied on the “consent” exception in ordering Google to comply with an employer’s subpoena for a former employee’s e-mails held in a Gmail account. In Negro v. Superior Court (Nevalimpianti) (Sixth District Court of Appeal, October 21, 2014), Google and the employee argued the employee had not lawfully consented to the disclosure because he had been judicially coerced into sending an e-mail to Google stating he consented to disclosure by an order issued by a Florida court. The case was venued in Florida, but issues related to the enforcement of the subpoena served on Google were before a California superior court. Google also argued there is no basis whatsoever for civil discovery under the SCA.

The California appellate court, in reviewing the superior court’s ruling on a motion to quash the subpoena, dismissed both arguments. With respect to consent, it noted the employee could have refused to comply with the Florida court’s order and sought appellate relief. Instead, the employee chose to comply with the court order.  “[Employee] was presented with a choice between facilitating the discovery sought by [the Employer], or risking such sanctions as the Florida court might elect to impose.  . .  . He seeks to have the best of both worlds by complying with the court’s order while denying that his decision to do so should be given legal effect. We reject this contention and hold that the consent expressly given by him pursuant to court order constituted ‘lawful consent’ under the SCA.”

The court of appeal was mindful of the practical implications of ruling otherwise. If service providers cannot rely on users’ e-mails consenting to disclosure, service providers would become embroiled in costly and uncertain disputes about whether consent existed. According to the court, when a user sends a service provider a consent to disclosure, that consent permits disclosure by the provider, even if the consent was sent under judicial compulsion.

With respect to Google’s contention that the SCA prohibits any use of civil discovery to obtain information held by service providers, with or without consent, the California court distinguished its own prior decision containing language to that effect in O’Grady v. Superior Court, 139 Cal.App.4th 1423 (2006). The court noted its prior decision did not involve a situation where a user consented to the disclosure and that it had limited its comments to the facts before it in the O’Grady case.

This case adds to the landscape of cases interpreting the SCA in the context of employment litigation. Courts in New York, Kansas, and Virginia have adopted or endorsed the approach used by the court of appeal in theNegro case, and have ordered users to send e-mails to providers consenting to disclosure.