The Stored Communications Act makes it extremely hard to get a party's email from an Internet service provider like Google. But you might have better luck with a Rule 34 request for discovery aimed directly at the party.

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So you want to subpoena a party's emails?

By George S. Bellas and Steve Ford

From Trial Briefs, November 2014 (newsletter of the ISBA Civil Practice and Procedure Section)

Federal civil litigators hoping to subpoena a party's Gmail from Google are probably in for a disappointment, George S. Bellas and Steve Ford write in the November 2014 issue of ISBA's Trial Briefs. Standing in their way are both the natural unwillingness of an Internet service provider to reveal user information and the federal Stored Communications Act (SCA), 18 U.S.C. § 2702(a)(1), which "prohibits Internet service providers from producing e-mails in response to a civil discovery subpoena," Bellas and Ford write. "As a result, many courts across the United States have quashed subpoenas on the basis that an Internet service provider cannot be compelled to disclose a party's emails pursuant to a civil subpoena."

Trial lawyers do have an alternative though - a request for production under Rule 34 of the Federal Rules of Civil Procedure, which enables the requester to get the emails directly from the party if the rule's requirements are met. "If an attorney can demonstrate that the e-mails are in the party's possession, custody, or control, then it is likely that he or she can obtain them with a request for production," Bellas and Ford write.

The SCA consent exception

The Northern District of Illinois is among the courts that have quashed subpoenas under the SCA. "In…Special Markets Insurance Consultants, Inc., v. Lynch [2012 WL 156348 (N.D. Ill. 2012)], the plaintiffs had served subpoenas on Yahoo to produce 'the complete e-mail records' of at least three private e-mail addresses owned by the defendants," Bellas and Ford write. "Citing a number of federal cases,…the court in Lynch quashed the civil subpoena because it violated the SCA."

The SCA does contain eight exceptions that allow disclosure, Bellas and Ford note. One of them is consent, and it proved fruitful to a subpoena seeker in another Northern District case. "The consent exception was applied in the case of Thayer v. Chiczewski [2009 WL 2957317 (N.D. Ill. 2009)], in which the defendant issued a civil subpoena to an Internet service provider seeking e-mails that the plaintiff had sent from his AOL account," Bellas and Ford write. "Ultimately in Thayer the court wrote that because the plaintiff had previously authorized AOL to divulge responsive e-mail in its possession, he had given his consent for AOL to divulge all responsive e-mails."

The easier way to email discovery: Rule 34

Just because you can't subpoena the email you seek from Google, Yahoo, or other ISPs doesn't mean it's off-limits, Bellas and Ford write. You may well be able to get it directly from the party by way of a Rule 34 request for production.

"According to the court in Thayer, Rule 34(a) of the Federal Rules of Civil Procedure permits parties to request production of documents and other items, including electronically stored information, that are 'in the responding party's possession, custody, or control.'" Bellas and Ford write. "A party has the requisite control over communications in a nonparty's possession where (1) a contractual provision grants a party the right to access the requested materials, (2) the materials are in the possession of the party's agent, such as its attorney, (3) the materials are in the custody of the party's employee, or (4) a party has the practical ability to obtain the documents from a nonparty to the action."

Thus, as long as the party from whom the email is sought actually controls his or her own email account, a Rule 34 request for production is the more promising approach, according to Bellas and Ford.