No Shirt, No Complaint, No Subpoena

A self-identified “Plaintiff” filed subpoenas in the Northern District of California directed to Google, MSN Hotnail, CableVision, AOL, Charter Communications, Verizon, Performanceix, and Yahoo!. Mission Trading Co. v. Doe, 2011 U.S. Dist. LEXIS 52681, 1-2 (N.D. Cal. May 16, 2011).

The subpoena to Yahoo! sought the identity, IP addresses and access logs associated with four email addresses.  The subpoena further requested, “copies of all electronic messages sent and received from said email addresses and any other email addresses associated with the IP addresses used to access these accounts.”  Mission Trading Co. v. Doe, at *1-2.

One small procedural issue: No complaint had been filed.  Mission Trading Co. v. Doe, at *1.

Despite this procedural omission, the subpoena was given a case number. Id.

Yahoo alerted one of the email address owners of the pending subpoena.  The new Opposing Party filed an Objection, which the Court treated as a motion to quash.  Mission Trading Co. v. Doe, at *2.

The Opposing Party argued the following:

1) No complaint is on file and no defendants have been named, so the subpoena is vague, ambiguous, overbroad, burdensome, oppressive and harassing;

2) The Opposing Party was not served with a copy of the subpoena and therefore cannot determine the purpose or scope of the subpoena;

3) The subpoena purports to impose requirements beyond those permitted by the Federal Rules of Civil Procedure; and 

4) The subpoena violates the Opposing Party’ right to privacy, could cause production of privileged documents or proprietary and confidential business records or trade secrets, and is overbroad to the extent it contains no time limits or subject matter limitations.

Mission Trading Co. v. Doe, at *2-3.

The Requesting Party admitted there was no pending litigation, but argued its subpoena equated to an “early discovery request” to identify a defendant.  Mission Trading Co. v. Doe, at *3-4.

There was no case authority for the Requesting Party’s position.  Moreover, cases that allow for early discovery actually have a complaint on file.  Mission Trading Co. v. Doe, at *4.

The Court granted the Opposing Party’s motion to quash, reasoning that without a complaint, it could not determine if it had jurisdiction or even if the complaint would survive a motion to dismiss. Mission Trading Co. v. Doe, at *4.

Bow Tie Thoughts

There are very valid times for early discovery to identity a Doe Defendant with ISP or other data, however, filing a complaint is a condition precedent before any subpoenas can be issued.

Once subpoenas are issued, a propounding party would need to contend with the Stored Communications Act, which is a barrier to production to the contents of email messages and other stored ESI.  While the information to identify a party is one thing to produce, the contents of messages are an entirely separate issue that are better suited for a request for production on a party.

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