Court reaffirms: Think before you email

A recent ruling against Google makes it clear again that courts can demand access to email, even after it's been deleted.

A recent ruling is another wake-up call for email users in this post-Snowden era of email privacy -- or lack thereof. It makes it clear that hitting the delete button does not mean that the email no longer exists or is no longer accessible. And it reaffirms the need to think before you put information in an email. Once it is written, you have already lost control.

In a decision that will protect the rights of email account holders to access their stored email and that will affect how evidence is gathered in civil lawsuits, a California appeals court has made two noteworthy decisions. First, Google cannot refuse to disclose email communications in a Gmail account in defiance of the account holder's lawful consent to disclose the email. Second, courts can compel account holders to retrieve deleted email stored in Gmail accounts. Let's see how the court came to make these decisions and the lessons we can draw from them. (A copy of the court's full decision can be found here.)

When Navalimpianti USA Inc. filed suit in Florida against its former president and others for betraying fiduciary duties, taking trade secrets and other property, and conspiracy, the former president failed to turn over any of the email communications he was legally obligated 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 issued a subpoena to Google in California hoping Google would produce those deleted emails.

When Google refused to produce the emails because the former president was refusing 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 lawyer told Google that the court-ordered consent was not valid 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 the former president's objections and threats. It also argued that courts could not compel Google to disclose email with a civil subpoena, among other things.

After two years of litigation, the California appeals court ruled that courts could lawfully order a litigant, like the former president, to consent to the disclosure of email where the litigant had a legal duty to produce those communications and had the right to access them. The former president could not conceal relevant evidence in a Gmail account by refusing to consent to its disclosure.

The court also ruled that since the former president gave Google lawful consent to disclose the emails, a court could use a subpoena to compel Google to make that disclosure. Once Google received the account holder's lawful consent, Google did not have the discretion or the power to reject that lawful consent and refuse to disclose the emails.

We can take several lessons from these decisions. An account holder can control the disclosure of email from a Gmail account with lawful consent. Once the account holder gives lawful consent to disclosure, Google cannot refuse to produce the email. The power of the courts to enforce the account holder's lawful consent by subpoena affirms that access to and control over Gmail accounts rests in the account holder -- not Google.

The ruling also underscores every citizen's duty to produce relevant evidence in connection with judicial proceedings. Courts can only hope to find the truth and produce fair and just results if all relevant evidence is made available. Parties to lawsuits should not be able to conceal, manipulate or destroy relevant evidence by hitting the delete button on an email account and then refusing to disclose the deleted content. This ruling vindicates the power of courts to gather relevant evidence controlled by parties to lawsuits.

Finally, Google fought hard to dodge the duty to comply with civil subpoenas because Google did not want to deal with the costs 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 to those communications. And when account holders have rights to the communications and when they have a legal duty to produce those communications in court, then long-standing legal principles empower the courts to compel Google to disclose the email it holds for its account holders. Indeed, it is a brave new world, and Google is right in the middle of it.

Joseph L. Raia is a shareholder in the business litigation practice group and a co-chair of the international practice group in the Miami office of Gunster, Yoakley & Stewart, a business law firm having over 160 attorneys in 11 offices in Florida. Michael B. Green is an associate in the Miami office of Gunster's business litigation practice group.

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