United States District Court, W.D. Pennsylvania
R. Hornak, United States District Judge
24, 2015, Plaintiff PPG Industries, Inc. ("PPG")
filed the instant action against Defendants Jiangsu Tie Mao
Glass Co., Ltd., Benhua Wu and Mei Zhang. In connection with
the case, PPG issued subpoenas to third parties Microsoft
Corporation ("Microsoft"), Google, Inc.
("Google") and Yahoo! Inc. ("Yahoo"). ECF
Nos. 63-1, 63-6, 63-12. Pending before the Court are
PPG's Motions to Compel Microsoft, Google and Yahoo to
Produce Responsive Documents Pursuant to their Subpoenas. ECF
Nos. 63-2, 63-7, 63-13. For the reasons that follow,
PPG's Motions are DENIED.
8, 2015, one of PPG's former employees, Thomas Rukavina
was arrested and charged with theft of trade secrets. ECF No.
63-2 at 8. In early June 2015, Thomas Rukavina committed
suicide while under house arrest. Id. PPG then filed
this action and obtained consent for the production of all
materials related to the case from Robert Rukavina, Thomas
Rukavina's brother and the executor and beneficiary of
his estate. Id. at 8-9, 48-50. After receiving
permission from the Court to conduct limited pre-answer
discovery and serve specified subpoenas, PPG served subpoenas
on Microsoft, Google and Yahoo seeking e-mail communications
received and sent from Thomas Rukavina's accounts with
each company. Id. at 9; ECF No. 18; ECF No. 63-3 at
2; ECF No. 63-9 at 8-9; ECF No. 63-15 at 2. When Microsoft,
Google and Yahoo refused to provide the requested
communications, PPG filed the pending Motions.
resolution of this case begins and ends with the Stored
Communications Act ("SCA"), which generally
provides that "a person or entity providing an
electronic communication service to the public shall not
knowingly divulge to any person or entity the contents of a
communication while in electronic storage by that
service." 18 U.S.C. § 2702(a)(1). However, under
the SCA a provider "may divulge the contents of a
communication" in certain circumstances, including when
it has "the lawful consent of the originator or an
addressee or intended recipient of such communication."
case, PPG argues that Microsoft, Google and Yahoo are
required to provide the requested e-mails because PPG has
served subpoenas for them and because Robert Rukavina, the
executor of Thomas Rukavina's estate, has consented to
their production, so (says PPG) the SCA's exception for
the "lawful consent of the originator, " §
2702(b)(3), applies. As part of its argument, PPG asserts
that under Pennsylvania law an executor has the authority to
handle a decedent's digital assets, including his
electronic communications, as if she were the decedent.
See, e.g., ECF No. 63-2 at 12-13. Whether or not
PPG's contention about this point of Pennsylvania law is
correct, however, is irrelevant to untangling the current
issue before the Court. Instead, the Court concludes by
examining the language of the SCA itself that production
should not be compelled.
it is plain that the SCA does not provide an exception to its
general prohibition on disclosure for civil subpoenas. Not
only is such an exception not enumerated in the statute,
see §§ 2702-703, but there is a seemingly
settled body of decisional law that affirmatively states that
civil subpoenas provide no such exception. See, e.g.,
Hawaii Reg'l Council of Carpenters v. Yoshimura, No.
CV 16-00198 ACK-KSC, 2017 WL 738554, at *3 (D. Haw. Feb. 17,
2017); In re Facebook, Inc., 923 F.Supp.2d 1204,
1206 (N.D. Cal. 2012) ("The case law confirms that civil
subpoenas may not compel production of records from
providers"); Mintz v. Mark Bartelstein &
Assocs., Inc., 885 F.Supp.2d 987, 991 (CD. Cal. 2012)
("The SCA does not contain an exception for civil
discovery subpoenas."); Flagg v. City of
Detroit, 252 F.R.D. 346, 350 (E.D. Mich. 2008)
("[A]s noted by the courts and commentators alike,
§ 2702 lacks any language that explicitly authorizes a
service provider to divulge the contents of a communication
pursuant to a subpoena or court order."); In re
Subpoena Duces Tecum to AOL, LLC, 550 F.Supp.2d 606, 611
(E.D. Va. 2008) ("the statutory language of the [SCA]
does not include an exception for the disclosure of
electronic communications pursuant to civil discovery
subpoenas."); Viacom Int'l Inc. v. Youtube
Inc., 253 F.R.D. 256, 264 (S.D.N.Y. 2008) ("§
2702 contains no exception for disclosure of [electronic]
communications pursuant to civil discovery requests").
even when one of the exceptions to prohibited disclosures
delineated in § 2702(b) applies, the SCA nonetheless
does not require providers to disclose communications. To
begin, § 2702(b) specifically states that providers
"may" divulge communications if an
exception applies; it does not state that they
"must" do so. See § 2702(b) (emphasis
added). "The word 'may, ' when used in a
statute, usually implies some degree of discretion."
United States v. Rodgers, 461 U.S. 677, 706 (1983).
Furthermore, as Google correctly articulates in its papers,
ECF No. 63-9 at 15-16, Congress knew how to draft a provision
of the SCA requiring disclosure yet chose not to make
disclosure mandatory in cases with lawful consent. In fact,
§ 2702, where the consent exception is located, is
entitled "Voluntary disclosure of customer
communications or records, " while § 2703 is
entitled "Required disclosure of customer communications
or records" and details the circumstances in which
providers must divulge electronic communications.
See §§ 2072-703. Ultimately then,
according to the language of the SCA, it is within the
providers' discretion whether to disclose e-mails even in
cases where there is lawful consent. See In re Facebook,
Inc., 923 F.Supp.2d at 1206 ("Under the plain
language of Section 2702, while consent may permit production
by a provider, it may not require such a production")
(emphasis omitted); Schweickert v. Hunts Point Ventures,
Inc., No. 13-CV-675RSM, 2014 WL 6886630, at *13 (W.D.
Wash. Dec. 4, 2014) ("Even if the Court could compel
Plaintiff to consent to the disclosure of some her emails
under Rule 34, the providers would still only be permitted,
but not required, to turn over the contents under 18 U.S.C.
§ 2702(b)(3)...It would still remain within the
providers' discretion to respond."). Therefore, the
Court need not decide whether Robert Rukavina's consent
as executor to production of Thomas Rukavina's emails is
sufficient to establish "lawful consent" under
§ 2702(b)(3). In any case, the Court cannot compel the
production of Thomas Rukavina's emails. PPG's Motions
are therefore DENIED.
the Court's resolution of the pending Motions ends there,
the Court would make a few final observations in order to
address matters raised by the parties. First, PPG could still
gain access to the emails in Thomas Rukavina's Microsoft
account should it choose to pursue them. Microsoft stipulated
at argument and in its papers that if the Pennsylvania court
with jurisdiction over Thomas Rukavina's estate concludes
that Robert Rukavina's consent is "lawful
consent" under § 2702(b)(3), Microsoft will
voluntarily divulge the emails PPG seeks. ECF No. 63-3 at 6.
This Order does not foreclose that avenue.
PPG could also potentially obtain the emails in Thomas
Rukavina's Yahoo and Google accounts by identifying the
individuals) who have been accessing the accounts since
Thomas Rukavina's death. Both Yahoo and Google assert
that Thomas Rukavina's accounts have been accessed on
numerous occasions since his death and note that PPG could
uncover the identity of the individuals) accessing the
accounts by issuing subpoenas for non-content information
(like IP addresses) to the appropriate parties. ECF No. 73 at
2-3; ECF No. 63-9 at 12; ECF No. 70 at 1. Once the identity
of the individuals) was uncovered, PPG could then ask the
individuals) for access to the emails.
even if the Court could otherwise order Microsoft, Google and
Yahoo to produce the requested emails, it would be unlikely
to order Yahoo to do so. Based on the record currently before
the Court, it appears that Thomas Rukavina repeatedly
consented to Yahoo's Terms of Service ("TOS"),
which include (and have included since November 2003) a
"No Right of Survivorship and Non-Transferability"
provision. See, e.g., ECF No. 73-3 at 10; ECF No.
73-1. Such provision explains that any rights Thomas Rukavina
had to the contents of his Yahoo account terminated upon his
death. Id. PPG has not cited to any law that
convinces the Court that the express terms of the TOS would
not control the matters at issue here. Thus, to put it
directly, it would appear that at the time Robert Rukavina
expressed his consent to the production of Thomas
Rukavina's emails, the property contained in Thomas
Rukavina's estate did not include his Yahoo emails. As
the executor of Thomas Rukavina's estate, Robert Rukavina
could not consent to production of electronic communications
that the estate did not own.
Motions to Compel Microsoft, Google and Yahoo to Produce
Responsive Documents Pursuant ...