In In re Subpoena Duces Tecum to AOL, LLC, 550 F. Supp.2d 606 (E.D. Va. 2008), the District Court affirmed a Magistrate Judge’s ruling that the Electronic Communications Privacy Act, 18 U.S.C. § 2701, et seq. (the “Privacy Act”) prohibits an Internet Service Provider (“ISP”) from producing the emails of a non-party witness. The Court held that “unauthorized private parties” and governmental entities cannot use Rule 45 civil discovery subpoenas to circumvent the protections afforded by the Privacy Act.
The dispute in question arose out of a subpoena duces tecum issued by State Farm Fire & Casualty Co. to AOL, LLC, seeking certain electronic documents belonging to Cori and Kerri Rigsby. The Rigsbys were non-party witnesses in a qui tam action in which the Rigsbys discovered allegedly fraudulent conduct by State Farm related to the federal government’s Hurricane Katrina cleanup efforts. In the course of litigation pending in Mississippi, State Farm sought the Rigsbys’ electronic records from AOL, the Rigsbys’ Virginia-based ISP. The Rigsbys objected to the subpoena on a number of grounds, one of which was the Privacy Act.
As the Court noted, the Privacy Act “plainly prohibits an electronic communication or remote computing service to the public from knowingly divulging to any person or entity the contents of customers' electronic communications or records pertaining to subscribing customers.” Id. at 610. While the Privacy Act contains a number of exceptions which may permit an ISP to disclose an individual’s electronic communications, the Court held that none were applicable to the civil discovery subpoena at issue.
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