a recent decision is another wake-up call for email users in this post-snowfall era of email privacy, or lack thereof. makes it clear that pressing the delete button does not mean that the email no longer exists or is no longer accessible. and reaffirms the need to think before putting information in an email. once written, you’ve already lost control.
In a decision that will protect the rights of email account holders to access their stored email and affect how evidence is gathered in civil lawsuits, a California appeals court has made two decisions remarkable. First, Google cannot refuse to disclose email communications in a Gmail account in defiance of the account holder’s legal consent to disclose the email. Second, courts can force account holders to retrieve deleted emails stored in Gmail accounts. Let’s see how the court came to make these decisions and what lessons we can draw from them. (You can find a copy of the court’s full decision here.)
when navalimpianti uses inc. filed suit in Florida against his former president and others for breach of fiduciary duty, taking trade secrets and other property, and conspiracy, the former president failed to deliver any of the email communications he was legally required to disclose. (In fact, none of the defendants produced any email, and it eventually came to light that they had destroyed relevant email during the lawsuit.) When the former president claimed that he had no email communications to produce because he had deleted them all, Navalimpianti subpoenaed Google in California in the hope that Google would produce those deleted emails.
When google refused to produce the emails because the former president refused to consent to the disclosure, navalimpianti obtained a court order directing the former president to send google his written consent to the disclosure. When that consent was sent, as ordered, the former president’s California attorney told Google that the court-ordered consent was invalid and threatened Google with civil and criminal prosecution if Google complied with the subpoena. being the “ham in the sandwich”, google refused to comply with the subpoena in the face of objections and threats from the former president. He also argued that the courts couldn’t force Google to disclose the email with a civil citation, among other things.
After two years of litigation, the California Court of Appeals ruled that courts could legally order a litigant, such as the former president, to consent to email disclosure when the litigant had a legal duty to produce those communications and had the right to access them. The former president could not hide relevant evidence in a gmail account by refusing to consent to its disclosure.
The court also ruled that since the former president gave google legal consent to disclose the emails, a court could use a subpoena to compel google to make such disclosure. once google received legal consent from the account holder, google did not have the discretion or power to withhold that legal consent and refuse to disclose the emails.
We can draw several lessons from these decisions. An account holder can control email disclosure from a gmail account with legal consent. Once the account holder legally consents to the disclosure, Google cannot refuse to produce the email. The power of the courts to enforce the account owner’s legal consent by subpoena asserts that access to and control of gmail accounts rests with the account owner, not google.
The ruling also underlines the duty of every citizen to present relevant evidence in connection with judicial proceedings. courts can only hope to find the truth and produce fair and equitable results if all relevant evidence is available. litigation parties should not be able to hide, manipulate or destroy relevant evidence by pressing the delete button on an email account and then refusing to disclose the deleted content. This ruling vindicates the power of the courts to gather relevant evidence controlled by the parties in the trials.
Ultimately, Google fought hard to evade the duty to comply with civil citations because Google didn’t want to deal with the cost and inconvenience of doing so. However, Google is in the business of facilitating and storing the electronic communications of millions of people. those people have rights over those communications. And when account holders have rights to communications and when they have a legal obligation to bring those communications to court, long-standing legal principles empower the courts to compel Google to disclose the email it holds for account holders. of the accounts. Indeed, it’s a brave new world, and Google is right in the middle of it.
jose l. raia is a shareholder in the commercial litigation practice group and co-chair of the international practice group in the miami office of gunster, yoakley & stewart, a business law firm that has more than 160 attorneys in 11 offices in florida. miguel b. green is an associate in the miami office of gunster’s commercial litigation practice group.