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Taking Corporate eMail to the Cloud: The Stored Communications Act and Control
Authors: Shawn P. Thomas, John L. Nicholson, Wayne C. Matus

While there is essentially no case law directly addressing discovery of corporate email held by Cloud providers, there are some instructive analogs found in cases involving third-party email providers under the Stored Communications Act, 18 U.S.C. §§ 2701-2712 ("SCA") and in cases addressing the concept of "control" under Fed. R. Civ. P. 34(a) that should be considered by large corporations thinking of migrating email to the Cloud.

The Stored Communications Act
In general, courts have held that the SCA prohibits third-party email service providers from disclosing without authorization the contents of users' email accounts, even to comply with civil subpoenas. Those courts have focused on whether email account holders who are parties in the underlying litigation can be ordered to authorize access to their email accounts. The prevailing answer is that, the SCA notwithstanding, such users can be so compelled.

A particularly illuminating Illinois case is Thayer v. Chiczewski, No. 07 C 1290, 2009 WL 2957317 (N.D. Ill. Sept. 11, 2009). Thayer was a civil rights suit against the city of Chicago (the "City") in which the City served a subpoena on America Online ("AOL") seeking production of several of the plaintiff's emails. Id. at *1. The plaintiff and AOL objected to the subpoenas and the City moved to compel. Id. at **1-2. After excoriating both the plaintiff and (especially) AOL for the ineptitude and inconsistency of their submissions opposing the motion to compel, Id. at **4-5, the court granted the motion. Id. at *9.

*This paper was originally prepared for the Fifth Annual Sedona Conference® Institute program on Staying Ahead of the eDiscovery Curve, held March 17-18, 2011 in San Diego, CA. Reprinted with permission.

To read this publication in its entirety, click the link in the adjacent "Downloads" section.

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