U.S. v. Weaver, 2009 WL 2163478 (C.D. Ill. July 15, 2009) (Not Reported)
In this case, the Government sought to discover the contents of defendant’s email sent or received at a Microsoft/MSN Hotmail account. Accordingly, the Government executed a trial subpoena seeking production of “‘the contents of electronic communications (not in ‘electronic storage’ as defined by 18 U.S.C. § 2510(7)’ and specified that the ‘[c]ontents of communications not in ‘electronic storage’ include the contents of previously opened or sent mail.’” Microsoft declined to produce the content of previously accessed, viewed, or downloaded emails that had been stored for fewer than 181 days citing precedent from the Ninth Circuit Court of Appeals that such production would require a warrant. Because Microsoft is located within the Ninth Circuit, it felt it must comply. The Government sought to compel production.
Ultimately, the court determined that production of the emails at issue could be compelled by trial subpoena. To arrive at that conclusion, the court looked primarily to The Stored Communications Act (“The Act”) which governs the disclosure of electronic communications maintained on computers, including the need for a trial subpoena versus a warrant. After undertaking a statutory analysis, the court determined that the applicability of the warrant requirement turned on whether the emails were “in electronic storage” which itself turned on the purpose for which the emails were stored in defendant’s Hotmail account: “the question [was] whether the emails were in storage ‘for the purpose of backup protection’ in which case they [were] in ‘electronic storage’ and protected by the warrant requirement.” That is to say, if the emails were being stored by Microsoft for the purpose of backup protection, they were subject to the warrant requirement.
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Source: ediscoverylaw.com
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