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Full Opinion
OPINION AND ORDER REGARDING DEFENDANTS’ MOTIONS TO PRECLUDE DISCOVERY OF ELECTRONIC COMMUNICATIONS
I. INTRODUCTION
In an opinion and related order issued on March 20, 2008, the Court (i) determined that the communications exchanged among certain officials and employees of the Defendant City of Detroit via city-issued text messaging devices were potentially discoverable under the standards of Fed.R.Civ.P. 26(b)(1), (see 3/20/2008 Op. at 10-11), and (ii) established a protocol under which two designated Magistrate Judges would review these communications and make the initial determination as to which of them are discoverable, (see 3/20/2008 Order at 3-8). Through the present motions, the Defendant City and one of the individual Defendants, Christine Beatty, seek to prevent this discovery effort from going forward, arguing that the federal Stored Communications Act (“SCA”), 18 U.S.C. § 2701 et seq.,
As discussed below, the Court rejects this proposed reading of the SCA as establishing a sweeping prohibition against civil discovery of electronic communications. Defendants’ position, if accepted, would dramatically alter discovery practice, in a manner clearly not contemplated by the existing rules or law, by permitting a party to defeat the production of electronically stored information created by that party and still within its control— information that plainly is subject to civil discovery, see Fed.R.Civ.P. 34(a)(1) — through the simple expedient of storing it with a third party. Because nothing in the plain language of the SCA requires this extraordinary result, and because Defendants have not identified any other support for this proposition, the Court holds that the discovery effort contemplated in its March 20, 2008 opinion and related order may go forward, albeit through a means somewhat different from that employed by Plaintiff to date.
II. BACKGROUND
During the time period of relevance to this case, the Defendant City of Detroit entered into a contract for text messaging services with non-party service provider SkyTel, Inc.
Upon learning of SkyTel’s apparent retention of such communications, Plaintiff issued two broad subpoenas to SkyTel in February of 2008, seeking the disclosure of (i) all text messages sent or received by 34 named individuals, including the individual Defendants, during a number of time periods spanning over 5 years, and (ii) all text messages sent or received by any City official or employee during a four-hour time period in the early morning hours of April 30, 2003, the date that Plaintiffs mother was killed. Defendants promptly moved to quash these subpoenas, arguing (among other things) that none of these communications, regardless of their content, satisfied the standard for discovery as set forth in Fed.R.Civ.P. 26(b)(1). In an opinion and related order issued on March 20, 2008, the Court rejected this contention — along with Plaintiffs contrary and equally sweeping assertion that all such communications were discoverable, without regard to their subject matter — and established a protocol under which two designated Magistrate Judges would conduct an initial review of certain subsets of the communications retained by SkyTel and determine, subject to Defendants’ objections and this Court’s review, which of these communications should be produced to Plaintiff.
As this court-ordered process was getting under way, the Defendant City and one of the individual Defendants, Christine Beatty, filed the present motions, arguing that the federal Stored Communications Act (“SCA”), 18 U.S.C. § 2701 et seq., prevents Plaintiff from obtaining in civil discovery any text messages that remain in SkyTel’s possession as a result of its role as the City’s service provider. Apart from these motions, SkyTel has moved to quash Plaintiffs subpoenas or, alternatively, for entry of an order that would protect the company against liability under the SCA for its production of text messages in accordance with the protocol established in this Court’s March 20, 2008 order. Finally, by motion filed on July 23, 2008, the Detroit Free Press seeks leave to file an amicus brief in opposition to the motion brought by Defendant Beatty, arguing that the Court’s resolution of this motion is likely to have a bearing on a state-court suit in which the newspaper seeks the production of certain text messages from SkyTel pursuant to the Michigan Freedom of Information Act.
III. ANALYSIS
A. Defendants Have Not Forfeited Their Opportunity to Challenge Plaintiffs Discovery Effort as Precluded by the SCA.
Before turning to the merits of Defendants’ SCA-based challenge, the Court first addresses Plaintiffs contention that Defendants’ motions should be denied as untimely requests for reconsideration of the Court’s March 20, 2008 rulings. As Plaintiff points out, under Local Rule 7.1(g)(1) of this District, such a request for rehearing or reconsideration must be filed within ten days after entry of the ruling at issue, but Defendants brought their present motions more than a month after the Court issued its March 20, 2008 opinion and related order. It follows, in Plaintiffs view, that Defendants’ SCA-based challenge is untimely.
Yet, regardless of whether Defendants’ motions could be construed as requests for reconsideration, the Court agrees with Defendant Beatty’s contention in her reply brief that Defendants filed these motions in accordance with the Court’s express authorization. So far as the Court’s review of the record has revealed, Defendants first alluded to the possible impact of the SCA in a March 17, 2008
B. The SCA Does Not Preclude Civil Discovery of a Party’s Electronically Stored Communications That Are Maintained by a Non-Party Service Provider But Remain Within the Party’s Control.
Turning to the merits, Defendants’ motions rest upon a simple yet sweeping proposition: namely, that the SCA “absolutely precludes the production of electronic communications in civil litigation.” (Defendant Beatty’s Motion at ¶ 3; see also Defendant City of Detroit’s Motion at ¶ 5.)
1. The Potentially Relevant Provisions of the SCA
As pertinent here, the SCA generally prohibits — subject to certain exceptions — a “person or entity providing an electronic communication service to the public” from “knowingly divulg[ing] to any person or entity the contents of a communication while in electronic storage by that service.” 18 U.S.C. § 2702(a)(1). It further prohibits— again, subject to certain exceptions — a “person or entity providing remote computing service to the public” from “knowingly divulg[ing] to any person or entity the contents of any communication which is carried or maintained on that service.” 18 U.S.C. § 2702(a)(2).
As is evident from these provisions, the prohibitions set forth in § 2702(a) govern service providers to the extent that they offer either of two types of services: an “electronic communications service” or a “remote computing service.” An “electronic communications service” (“ECS”) is defined as “any service which provides to users thereof the ability to send or receive wire or electronic communications.” 18 U.S.C. § 2510(15).
The potential importance of distinguishing between an “ECS” and an “RCS” lies in the different criteria for establishing an exception to the general rule against disclosure.
Yet, as 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. See, e.g., In re Subpoena Duces Tecum to AOL, LLC, 550 F.Supp.2d 606, 611 (E.D.Va.2008) (observing that “the statutory language of the [SCA] does not include an exception for the disclosure of electronic communications pursuant to civil discovery subpoenas”); see also U.S. Internet Service Provider Ass’n, Electronic Evidence Compliance — A Guide for Internet Service Providers, 18 Berkeley Tech. L.J. 945, 965 (2003) (noting that none of the exceptions set forth in § 2702(b) “expressly permits disclosure pursuant to a civil discovery order” obtained by a private party).
2. The Communications That Are Potentially Subject to Production Under the Rulings and Corresponding Protocol Set Forth in the Court’s March 20, 2008 Opinion and Related Order
Before returning to the terms of the SCA and their potential impact here, the Court first revisits its rulings in the March 20, 2008 opinion and related order. As discussed earlier, the subpoenas that were addressed in the March 20 opinion sought the production of the contents of (i) all messages that originated from or were received by the SkyTel text messaging devices issued to any of 34 named individuals — most (but not all) of whom were City of Detroit officials and employees
In its March 20 opinion, the Court rejected the extreme positions of Plaintiff and Defendants alike as to the discoverability of these communications — i.e., Plaintiffs contention that all of the text messages meeting these broad criteria were subject to production,
As a result of these rulings, the universe of text messages that will ultimately be produced to Plaintiff is narrowly confined to those that are found to be “relevant” and “nonprivileged” under Rule 26(b)(1). Moreover, and as the Rule itself makes clear, the requisite determination of relevance "will be made by reference to the parties’ claims and defenses. In this case, then, the Rule 26(b)(1) inquiry will turn upon the relevance of any particular text message to the theory of recovery advanced in Plaintiffs complaint — namely, that Defendants violated his constitutional right of access to the courts by deliberately delaying and obstructing the investigation into his mother’s murder, and by ignoring and actively concealing material evidence bearing upon this investigation.
When Plaintiffs discovery effort is viewed in this light, the appeals of Defendant Beatty — as well as Defendant Kilpatrick, in his submissions stating his concurrence in his co-Defendants’ motions — to notions of “privacy” appear wholly inapposite. As explained, a text message is discoverable in this case only if it is relevant to Plaintiffs allegations of deliberate delay, obstruction, and disregard or concealment of evidence in the investigation of his mother’s murder. Surely, any text messages exchanged among City of Detroit officials or employees concerning the topic of the Tamara Greene murder investigation are properly characterized as governmental, and not private or personal, communications.
For similar reasons, the Defendant City’s attempts in its motion to interpose claims of privilege are, at best, premature, and have no bearing on the present SCA-based challenge. Contrary to the City’s contention, it simply is not possible to meaningfully address such assertions of privilege generically, without first reviewing the text messages sent and received by the pertinent City officials and employees and identifying those which contain relevant subject matter. Consider, for example, a hypothetical text message in
To be sure, some of the text messages reviewed by the Magistrate Judges in this process might include personal or private information, and some might be the subject of legitimate claims of privilege. Yet, this was the very purpose of the protocol established in the Court’s March 20, 2008 order— to review these communications in camera, and then to afford Defendants an opportunity to raise objections, as a means of protecting against disclosure to Plaintiff of irrelevant, privileged, or otherwise non-discoverable materials. In agreeing to this protocol, Defendants presumably recognized that it was meant to safeguard their interests in preventing such disclosures, and they have not suggested how it might be inadequate to achieve this objective.
Under these circumstances, Defendants’ appeals to notions of privacy and privilege are simply beside the point. What they necessarily must show is far broader — namely, that the SCA prohibits either (i) the submission of SkyTel text messages to the Court for an in camera review, or (ii) the production to Plaintiff of the subset of these communications that are determined by the Court to be discoverable under the standards of Rule 26(b)(1). If the SCA dictates such a result, it must do so despite the absence in this case of any real threat that personal or privileged communications might be disclosed to Plaintiff. This bears emphasis as the Court resolves Defendants’ motions.
3. The Federal Rules Governing the Discovery of a Party’s Electronically Stored Information
One final subject warrants consideration before addressing the merits of Defendants’ SCA-based challenge. Although Plaintiff chose third-party subpoenas as the vehicle for seeking the production of SkyTel text messages, the Court finds it instructive to consider whether Plaintiff could have achieved the same objective through an ordinary Fed.R.Civ.P. 34 request for production directed at the Defendant City. As discussed below, the Court answers this question in the affirmative.
Under Rule 34(a), a party may request the production of documents and various other categories of items that are “in the responding party’s possession, custody, or control.” Fed.R.Civ.P. 34(a)(1). The items that may be sought under the Rule include “electronically stored information,” Fed. R.Civ.P. 34(a)(1), which plainly encompasses both electronic communications and archived copies of such communications that are preserved in electronic form, see Fed.R.Civ.P. 34, Advisory Committee Note to 2006 Amendments; Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 317 nn. 36-38 (S.D.N.Y.2003).
As the language of the Rule makes clear, and as the courts have confirmed, a request for production need not be confined to documents or other items in a party’s possession, but instead may properly extend to items that are in that party’s “control.” Fed. R.Civ.P. 34(a)(1); see also Cooper Industries, Inc. v. British Aerospace, Inc., 102 F.R.D. 918, 919 (S.D.N.Y.1984) (“Documents need not be in the possession of a party to be discoverable, they need only be in its custody or control.”). The Sixth Circuit and other courts have held that documents are deemed to be within the “control” of a party if it “has the legal right to obtain the documents on demand.” In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir.1995); see also Mercy Catholic Medical Center v. Thompson, 380 F.3d 142, 160 (3d Cir.2004); Searock v. Stripling, 736 F.2d 650, 653 (11th Cir.1984).
The ease law illustrates the variety of circumstances under which a party may be deemed to have “control” over materials not in its possession. First, the requisite “legal right to obtain” documents has been found in contractual provisions that confer a right of access to the requested materials. See, e.g., Anderson v. Cryovac, Inc., 862 F.2d 910, 928-29 (1st Cir.1988); Golden Trade, S.r.L. v. Lee Apparel Co., 143 F.R.D. 514, 525 (S.D.N.Y.1992). The courts also have held that documents in the possession of a party’s agent — for example, an attorney — are considered to be within the party’s control. See, e.g., Commercial Credit Corp. v. Repper (In re Ruppert), 309 F.2d 97, 98 (6th Cir.1962); American Society for the Prevention of Cruelty to Animals v. Ringling Bros. & Barnum & Bailey Circus, 233 F.R.D. 209, 212 (D.D.C.2006); Gray, 148 F.R.D. at 223. As the Sixth Circuit observed, “[i]f this were not so, then the client could always evade his duty to produce by placing the documents with his attorney.” In re Ruppert, 309 F.2d at 98; see also Cooper Industries, 102 F.R.D. at 920 (ordering the production of documents in the possession of the defendant corporation’s overseas affiliate, and reasoning that if this party “could so easily evade discovery” by “destroying its own copies and relying on ... copies maintained by its affiliate abroad,” then “every United States company would have a foreign affiliate for storing sensitive documents”).
Next, the courts have found that a corporate party may be deemed to have control over documents in the possession of one of its officers or employees. In Riddell Sports Inc. v. Brooks, 158 F.R.D. 555, 558 (S.D.N.Y.1994), for example, the defendant sought to compel the production of tape recordings of his telephone conversations with an officer of the plaintiff corporation, Mr. Wingo, who had not been named a party to the suit. The plaintiff argued that these tapes belonged to Wingo, and not the corporation, “and therefore should have been sought by subpoena served on him personally.” Riddell Sports, 158 F.R.D. at 558. The court disagreed, explaining that when materials are “created in connection with the officer’s functions as a corporate employee, the corporation has a proprietary interest in them and the officer has a fiduciary duty to turn them over on demand.” 158 F.R.D. at 559. Accordingly, because Wingo made the recordings at issue “in furtherance of his functions” as an officer of the plaintiff corporation, the court found that the tapes were within the control of this party, and thus “must be disclosed in response to a proper notice for production.” 158 F.R.D. at 559.
Rule 34(a) plainly provides that a party may request another party to produce any designated document which is within the possession, custody or control of the party of whom the request is made. Plaintiffs, consequently, may request Douglas to have its non-defendant employees procure copies of their private testimony before the SEC so that Douglas may give same to plaintiffs. Plainly Douglas’ employees are persons within its control. The testimony of these employees relates to Douglas’ affairs.
Herbst, 63 F.R.D. at 138; see also In re Domestic Air Transportation Antitrust Litigation, 142 F.R.D. 354, 356 (N.D.Ga.1992) (ordering the defendant corporations to secure the consent of their employees in order to obtain and produce transcripts of deposition testimony given by these employees in a Department of Justice investigation).
Finally, in a relatively recent decision, a district court found that defendant El Paso Corporation had “control,” within the meaning of Rule 34(a)(1), of electronic records maintained by a third party on the company’s behalf. See Tomlinson v. El Paso Corp., 245 F.R.D. 474, 477 (D.Colo.2007). In that case, defendant El Paso had a duty under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., and its implementing regulations to ensure that its employee benefit records were “maintained in reasonable order and in a safe and accessible place, and in such manner as they may be readily inspected or examined.” Tomlinson, 245 F.R.D. at 477 (quoting 29 C.F.R. § 2520.107-1(b)). Although El Paso employed a third party, Mercer Human Resource Consulting, to administer its employee pension plan and maintain the electronic records associated with this plan, the court held that El Paso could not delegate its record-keeping duties under ERISA to this third party. 245 F.R.D. at 477. Rather, the court held that El Paso retained control over the pension plan data held by Mercer, and thus had the “authority and ability to obtain” and produce the data requested by the plaintiff plan participants. 245 F.R.D. at 477.
Applying Rule 34(a)(1) and its attendant case law here, the Court readily concludes that the Defendant City of Detroit has “control” over the text messages preserved by third party SkyTel pursuant to its contractual relationship with the City. To be sure, and as noted earlier, the Court’s inquiry on this point is significantly hindered by the City’s failure to produce any meaningful documentation that might reveal the terms of its agreements with SkyTel. In response to the Court’s May 6, 2008 order directing it to produce copies of “any and all contracts” pursuant to which SkyTel provided text messaging services to the City and its employees, the City furnished a handful of one-page purchase orders, partial and unsigned SkyTel “Corporate Account Agreement” forms, and the like, none of which discloses the specific nature and extent of the services provided by SkyTel to the City during the course of their contractual relationship. Under this record, it is impossible to make any definitive pronouncements about the degree of control granted to the City under its agreements with SkyTel.
Nonetheless, the record includes several other indicia of the City’s control over the text messages maintained by SkyTel. First and foremost, the City’s present motion is premised upon such control, first asserting
Yet, if the City can block the disclosure of SkyTel messages by withholding its consent, it surely follows that it can permit the disclosure of these communications by granting its consent. This acknowledged power readily qualifies as a “legal right to obtain” the messages held by SkyTel, and hence constitutes “control” within the meaning of Rule 34(a)(1). See In re Bankers Trust Co., 61 F.3d at 469. Indeed, the courts recognized precisely this point in Herbst, supra, 63 F.R.D. at 138, and In re Domestic Air Transportation Antitrust Litigation, 142 F.R.D. at 356, determining in each case that a party had control over materials in the possession of a third party by virtue of its ability to secure the consent that was necessary to obtain a copy of these materials.
The City’s control over the SkyTel text messages is further confirmed by the Michigan law governing the maintenance and disclosure of public records. In particular, Michigan’s Freedom of Information Act (“FOIA”) mandates that, subject to various exceptions, a “public body shall furnish a requesting person a reasonable opportunity for inspection and examination of its public records.” Mich. Comp. Laws § 15.233(3). There is no question that the Defendant City is a “public body” under the FOIA, see Mich. Comp. Laws § 15.232(d)(iii), and that at least some of the SkyTel text messages satisfy the statutory definition of “public records,” insofar as they capture communications among City officials or employees “in the performance of an official function,” see Mich. Comp. Laws § 15.232(e); see also City of Warren v. City of Detroit, 261 Mich. App. 165, 680 N.W.2d 57, 62 (2004) (confirming that the statutory definition of a “public record” includes information captured in electronic form); Farrell v. City of Detroit, 209 Mich.App. 7, 530 N.W.2d 105, 109 (1995) (same).
Because at least some of the text messages maintained by SkyTel are “public records” within the meaning of Michigan’s FOIA, it would be problematic, to say the least, to conclude that the City lacks a legal right to obtain these records as necessary to discharge its statutory duty of disclosure. Such a conclusion also would be contrary to the pertinent Michigan case law. First, the Michigan courts have held that the FOIA duty of disclosure, like the Rule 34 duty of production, extends to public records within the possession or control of a public body. See MacKenzie v. Wales Township, 247 Mich.App. 124, 635 N.W.2d 335, 339 (2001); Easley v. University of Michigan, 178 Mich.App. 723, 444 N.W.2d 820, 822 (1989). Next, while there is no obligation under the Michigan FOIA to create public records, the statute does impose a “duty to provide access” to those public records that have been created and are the subject of a proper FOIA request, and this obligation “inherently includes the duty to preserve and maintain such records until access has been provided or a court executes an order finding the record to be exempt from disclosure.” Walloon Lake Water System, Inc. v. Melrose Township, 163 Mich.App. 726, 415 N.W.2d 292, 295 (1987) (footnote omitted); see also Mich. Comp. Laws § 15.233(3) (“A public body shall protect public records from loss, unauthorized alteration, mutilation, or destruction.”). In this respect, then, the City here stands on a similar footing to the defendant corporation in Tomlinson, supra, 245 F.R.D. at 477, which was found to have control over electronic records in the possession of a third party by virtue of its statutory obligation to maintain these records and make them available for examination or inspection.
Indeed, the decision of the Michigan Court of Appeals in MacKenzie, supra, is particularly instructive here. In that case, the defendant townships contracted with a third party, the City of Port Huron, to prepare property tax notices to be issued to township property owners. Under this contract, the townships supplied paper documents to Port Huron, which then “created magnetic computer tapes containing the pertinent tax information on each property owner.” MacKenzie, 635 N.W.2d at 336. At the conclusion of this process, Port Huron returned the paper documents but retained the computer tapes. The plaintiff real estate broker submitted a FOIA request to the defendant townships seeking a copy of the computer tapes, but the townships resisted this request, contending that the tapes were not in their possession and that they were under no obligation to obtain them from Port Huron.
The Michigan Court of Appeals rejected the townships’ arguments and ordered them to disclose the computer tapes to the plaintiffs. In so ruling, the court first
Of particular significance here, the court next found that the defendant townships “maintained a measure of control over the tapes,” by virtue of having provided the data used to created the tapes, and as evidenced by a letter from one of the townships to the plaintiff stating that Port Huron would not release the tapes without permission and that the township did not intend to give any such permission. 635 N.W.2d at 339. In light of this retained control, the court deemed it legally insignificant that the tapes were not in the townships’ possession. 635 N.W.2d at 339 (citing Mich. Comp. Laws § 15.240(4), which authorizes the courts to order the production of “all or a portion of a public record wrongfully withheld, regardless of the location of the public record”). Rather, the court held that the townships were obligated to secure the production of the computer tapes, “whether by signing the release provided by Port Huron or [by] obtaining copies of the tapes and forwarding them to plaintiff.” 635 N.W.2d at 339. This decision in MacKenzie provides a compelling basis for concluding that the Defendant City has control, within the meaning of Rule 34(a)(1), over any “public records” that might be retained by third party SkyTel under its contract with the City.