Is email communication private?

[HaryCalahan]

What is the name of your state (only U.S. law)? TX

I thought emails were private, but our attorney is telling us that we have to hand over passwords to our email accounts during discovery. Is that true?? They're asking for our logins and passwords. I find that shocking, I thought emails were considered private except in extreme cases like murder and stuff.What is the name of your state (only U.S. law)?

 

[Tex78704]

What is the name of your state (only U.S. law)? TX

I thought emails were private, but our attorney is telling us that we have to hand over passwords to our email accounts during discovery. Is that true?? They're asking for our logins and passwords. I find that shocking, I thought emails were considered private except in extreme cases like murder and stuff.What is the name of your state (only U.S. law)?

So you have actually found an attorney to handle your case, and this attorney is suggesting you hand over passwords to your email accounts without objecting?

 

[RRevak]

What is the name of your state (only U.S. law)? TX

I thought emails were private, but our attorney is telling us that we have to hand over passwords to our email accounts during discovery. Is that true?? They're asking for our logins and passwords. I find that shocking, I thought emails were considered private except in extreme cases like murder and stuff.What is the name of your state (only U.S. law)?

I went back and read your posting H/X and seeing as this is an internet defamation case i'm going to assume he wants them to see if there is anything the other side might be able to use against you. If he finds these things before they do he has a chance to figure out how to defend you against anything that may be perceived as harmful to your case. If you trust your attorney...and I hope you do...and you have nothing to hide, then you need to provide them.

 

[quincy]

Perhaps I am reading this differently than you are, RRevak? It sounds to me that the other party is asking for the disclosure of email logins and passwords as part of a discovery request.

If this is the case, I am surprised that Hary's attorney is not objecting to this request as being overbroad and an invasion of privacy.

 

[HaryCalahan]

Wow, there sure are some DUMB lawyers on this board.

Quincy, you're right, that's what's going on.

I did some internet research and, from what I can tell, the Stored Communications Act seems to declare that email is private. Thanks

 

[tranquility]

The Stored Communications Act is more on how to compel providers to turn over the information. You are in a lawsuit and the other side has a right to do discovery which is designed to lead to relevant evidence.

I don't see how the password is relevant, but I do certainly see how your emails might be. Electronic discovery is all the rage and you may have to turn over your emails for the lawsuit.

 

[quincy]

The Federal Rules of Civil Procedure states that "parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things..." but all discovery is subject to limitations.

In Texas, the scope of discovery is limited to legitimate interests of the opposing party and must avoid overly broad requests, harassment, or the disclosure of privileged information (In re Am Optical Corp, 988 SW 2d 711, 713, Tex 1998).

In re Lowes Co, the Texas Appeals Court held that a discovery order was overbroad when it allowed for the plaintiffs in the case to access computer data without any limitations as to time, place or subject matter.

The Court in In re HEB Grocery said (quoting In re CSX Corp): "Because discovery is limited to matters that are relevant to the case, requests for information that are not reasonably tailored as to time, place or subject matter amount to 'fishing expeditions.' "

And the Texas Supreme Court in Dillard Dept Stores clearly rejected the "notion that any discovery device can be used to fish."

It seems to me, from this distance and based only on the facts that have been provided, that a discovery request that includes the disclosure of personal passwords and logins of a party in order to access the party's email accounts is overly broad and could result in the disclosure of private and privileged materials not relevant to the case.

Hary, it may help you to read over discovery rules from both the Texas Rules of Civil Procedure and from the Federal Rules of Civil Procedure. You can access these at http://www.supreme.courts.state.tx.us/rules/trcphome.asp and http://www.law.cornell.edu/rules/frcp/Rule26.htm.

Refer to Federal Rule 26, General Provisions Governing Discovery; Duty of Disclosure, and refer to Texas Rules 190 to 196.4 (with special concentration on Texas Rule 193.4, which is modeled after the Federal Rule 26(b)(2)).

The Federal Rules and most state Rules have been revised in recent years to address concerns about overbroad discovery requests, and they have been amended in recent years to reflect the growing number of discovery requests made for electronically stored information.

It is nice that you were finally able to locate an attorney to handle your legal matter, Hary, and I hope that you trust him enough to follow his advice and direction. Your attorney has access to all of the facts and can best guide you. I would definitely inquire of your attorney, however, why this particular discovery request made of you by the other party should not be objected to as being overly broad.

Good luck.

 

[tranquility]

In the topic "Libel / Slander / Defamation" I wonder if one can libel, slander or defame another with publication through email? (Rhetorical question.)

Since we don't have any facts, we don't know if the email is discoverable. But, if the claim is the OP sent out email defaming the plaintiff, I'd say all email is discoverable to find out the extent of the publication. While I'm sure the OP can try to limit discovery only to emails where the plaintiff is mentioned, because of the many questions which revolve around some defamation issues, I'd bet all the emails in such a case would be subject to discovery.

 

[Tex78704]

If the plaintiff is claiming the defendant sent defamatory emails, the plaintiff would need to provide a basis for that claim by establishing who the recipients were, and presumably have a copy from at least one recipient to prove this. Otherwise it is a fishing expedition to find out IF the defendant did email defamatory information.

And even if there was evidence of defamatory emails originating from the defendant, courts have ruled against access to a persons entire email accounts if the discovery cannot be limited to exclude emails that are privileged or not relevant to the discovery sought, as it could be overly invasive of one's right of privacy.

Magistrate Quashes Subpoenas to Plaintiff's Personal Email Providers
Quinby v. WestLB AG, 2006 WL 59521 (S.D.N.Y. Jan. 11, 2006)
Plaintiff argued that the subpoenas were overbroad, and the court agreed and stated:
Assuming plaintiff's personal e-mail accounts are similar to those of most individual's, these subpoenas would yield a vast amount of irrelevant material, including "spam" e-mails, internet purchase orders and confirmations, personal correspondence, confirmations of medical appointments and the whole raft of communications that are now routinely made over the internet. Although the vast majority, if not all, of this material is, no doubt, innocuous, that is not the touchstone for discovery; in order to be discoverable, the material sought must be "not privileged" and "relevant to the claim or defense of any party." Fed.R.Civ.P. 26(b)(1). Defendant's subpoenas entirely ignore the requirement that a discovery request be limited to relevant material.

Court Holds there is a Reasonable Expectation of Privacy in the Contents of Emails
United States v. Warshak, 2010 WL 5071766 (6th Cir. Dec. 14, 2010) In this lengthy opinion, the court considered the question of whether an account holder has an expectation of privacy as to the contents of his emails. Answering in the affirmative, the court held that "a subscriber enjoys a reasonable expectation privacy in the contents of his emails 'that are stored with, or sent or received through, a commercial ISP'" and that "the government may not compel a commercial ISP to turn over the contents of a subscriber's emails without first obtaining a warrant based on probable cause."

Beyond this, in many cases it is extremely difficult if not impossible, to determine IF (or more importantly when) someone permanently deleted emails from accounts such as Yahoo or AOL. Once out of the trash bin its pretty much gone forever without traceablitiy, and ISP's do not generally archive this.

AOL emphatically claims that if the email is no longer available to the account holder, they no longer have it either.
Civil Subpoena Policy

But folks who use their employers email account is another matter entirely, and courts are not inclined to care much about any personal information in that.

 

[tranquility]

Since we're not talking about a governmental search and the 4th amendment, the second cite is not on point.

As to the first, I agree that asking for a password would be overbroad. But, it all depends on what is being asked for. (Besides, we can come up with other cites as well.) E-discovery is all the rage and, until we have the facts and issues involved, blanket statements about what is or is not discoverable is just silly.

It's a brave new world. Lot's of great information on ssrn.

Go to Social Science Research Network (SSRN) Home Page and search for electronic discovery litigation.

 

[Patse3839]

public domain - internet that is...

Nope - emails are not private, ever watch TV and see how they get some perv on child porn and then take his computer away? the internet is public domain, same with email and you best hope things are in order when they come take your computer as evidence. even if you delete files and empty the trash, it leaves a thumbprint on your harddrive

 

[CreativeBlock]

Nope - emails are not private, ever watch TV and see how they get some perv on child porn and then take his computer away?

Um, I believe there is a vast difference between a criminal case and a civil one.

Whereas one will certainly, if applicable, compel a LEO into your home to confiscate your computer, one is a CIVIL case whereupon I believe you are ordered to surrender it.

One leaves you no choice, the other leaves you with a loss.

But AFAIK, civil courts don't usually care as much as to enter someone's home and take away their computer.

even if you delete files and empty the trash, it leaves a thumbprint on your harddrive

It leaves bits of files that can be reassembled by a digital forensic analyst using forensic software. Is that what you meant?

 

[Quaere]

Basically, I'm being sued for defamation for internet postings I didn't make,

So when the plaintiff subpoenas the poster’s isp, you will be cleared. Even if P does produce evidence that you wrote the posts, there would be no point in searching your pc for anything. No judge that KNOWS the law on this issue would permit anyone to search your computer. However, judges usually do NOT know the law in this area, and it is up to your atty to teach the judge the law.

and for filing a complaint against a psychologist (yes, a psychologist is suing me for complaining to the board of psychology! believe it or not).

Assuming you sent your complaint to the appropriate governing body, it would be privileged and therefore, not actionable.

I've talked to a couple of attorneys and none seem to want to handle this.

I’m sure what you mean is that no one is willing to take on your counterclaim…at least not on a contingency. You certainly can’t be having a problem finding a defense atty for the defamation claim, unless you are unwilling to pay.

we have to hand over passwords to our email accounts during discovery. Is that true?? They're asking for our logins and passwords.

No atty in his right mind would ask for that information. I would seriously question the competence of any atty that asked for access to my accounts. You must have misunderstood him.

There are very few attys out there that have the slightest idea of how to handle a defamation claim. Even fewer, know how to handle any case that involves email, the net, etc. But even the least knowledgeable, would know better than to gain access to any account you own.

If you shopped around for the first guy you could get for $150 an hour, you better rethink what you are doing. An incompetent atty can cost you a fortune.

As far as your email being private...it is private unless or until its contents become of material interest in a legal controversy. When a court allows discovery of a person's hard drive, the pc owner has a lot of rights and the "search" of the hard drive is limited to relevant subject matter. Often the results of the search (conducted by an independent lab) are reviewed by the court (in camera) and only that which the court deems relevant to the case, will be turned over to the other party. Again though, this presumes the judge knows and cares to respect the law.

 

[quincy]

It is good that the above information came from a certified internet engineer and not an attorney.

If information on a computer that has been requested as part of discovery is somehow lost due to the "routine, good-faith operation of an electronic information system," a court cannot impose sanctions against the party who fails to provide this information. A good faith operation, however, would not include the purposeful thwarting of a discovery request or obligation by destroying specifically requested information.

 

[Cliff421]

It is good that the above information came from a certified internet engineer and not an attorney.

If information on a computer that has been requested as part of discovery is somehow lost due to the "routine, good-faith operation of an electronic information system," a court cannot impose sanctions against the party who fails to provide this information. A good faith operation, however, would not include the purposeful thwarting of a discovery request or obligation by destroying specifically requested information.

Perhaps I misread it. I thought it said the passwords, not the computer(s) were demanded.

There is your password with your ISP that your email client (Outlook?) uses itself to access your email account to send and receive. You enter that when you set up the email account on your computer the first time.

I can turn off my home computer before I go on a trip so it won't send and receive emails, and then my emails will stay on my ISP's POP3 and SMTP servers. Now, when I get landed somewhere and have internet access, I can go to my email via the web based way my ISP provides using a web browser. I can type in my user/pass and see and read my emails. They still stay on the servers.

When I get home, I restart Outlook, hit send/receive, and it will pull those same emails off the server and now there is nothing to see in the web based accounts.

If my computer was suddenly seized, my user/pass is already set up for email send/receive and anyone could read my emails.

So, being technically oriented, I answered the question. Assuming the computer has not been demanded or seized, then I'll clean it up all I want.

FWIW, I do that to my computer periodically anyway because I regularly have sensitive customer info on it for a time.

Of topic, this is what you do before you sell or give away a computer. You make one of those disks. You run it in the mode which will wipe everything on the computer to the point it can't be recovered and only then do you release it. It's a shame that some people donate a computer but keep the HDD only because they are afraid the data will be recovered. It's also spooky that they first only format the HDD believing it can't be recovered.