If you are like most litigators today, you have tried to subpoena e-mail records from Google, Yahoo and Microsoft. Usually the results are mixed skewing toward the “waste of time” end of the scale. Perhaps you have the wrong client. Perhaps you should be representing Chevron.
What I am alluding to is a recent ruling by a federal judge in New York in which Chevron sought from ” Google, Yahoo! and Microsoft, demanding IP usage records and identity information for the holders of more than 100 email accounts, including environmental activists, journalists and attorneys . . . [including] personal information about every account holder and the IP addresses associated with every login to each account over a nine-year period.” The case involves an $18.2 billion verdict against Chevron in an Ecuadorian court for dumping waste into the Amazon River.
The subpoena had been challenged on First Amendment grounds but “the court granted the first of these subpoenas in full, holding that the anonymous individuals were not entitled to First Amendment protection because they may not be U.S. citizens.” (The First Amendment was used as a basis for the opposition because a Fourth Amendment challenge was not viable due to the issue being a subpoena in a civil action.)
Moral of the story: Next time you issue a sweeping subpoena for scads of detailed information about anonymous non-party e-mail users in your case, just tell the court there is no proof that the non-parties are American citizens. It worked for Chevron, no doubt is will work for you. Right?
