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The Federal Stored Communications Act: Third-Party Subpoena to E-mail Service Provider of Anonymous Party Ruled Invalid
Are electronic records maintained by an electronic communications service provider fair game for discovery in civil litigation? In O'Grady v. The Superior Court of Santa Clara County (Apple Computer, Inc.), 139 Cal. App. 4th 1423, 44 Cal. Rptr. 3d 72 (Ct. App, 6th Dist. 2006), a California state appeals court quashed a civil subpoena seeking e-mail records from an e-mail service provider, citing provisions of the federal Stored Communications Act ('SCA'), 18 U.S.C. ”2701-2712, that prohibit service providers from disclosing the contents of stored electronic communications. The ruling is controversial because it appears to be the first time, in the 20 years since the enactment of the SCA in 1986, that a court has held that the Act prohibits civil litigants from obtaining discovery of electronic communications from providers of e-mail and other electronic communications services, even when a court has reviewed and approved the subpoena.
The issue was raised during Apple Computer's highly publicized effort to learn the identity of the anonymous individuals who were responsible for leaking the company's confidential new product information to Web site operators who ultimately posted it publicly on the Internet. Apple filed a 'John Doe' suit against the anonymous leakers and then proceeded to seek discovery that might reveal their identities. Presumably, at least one of the leakers (or the only leaker) was an Apple employee, but Apple asserted that its own internal investigation had failed to reveal the source of the leak.
Apple obtained an order giving it the authority to subpoena documents, both from the Web sites that posted the confidential information and from their hosting and e-mail providers. The operators of the Web sites, who were not named parties in the underlying litigation, then moved for a protective order claiming, among other things, that the subpoenas to their e-mail service providers violated the SCA. Although Apple prevailed in the trial court, the appellate court held in a sweeping ruling that the SCA prohibits the use of third-party civil subpoenas to obtain discovery of electronic communications from e-mail service providers.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Anti-Assignment Override Provisions
UCC Sections 9406(d) and 9408(a) are one of the most powerful, yet least understood, sections of the Uniform Commercial Code. On their face, they appear to override anti-assignment provisions in agreements that would limit the grant of a security interest. But do these sections really work?