Facts
- Ernest Flagg, on behalf of a minor child, sued the City of Detroit and officials under 42 U.S.C. § 1983 in connection with a police shooting and wrongful death.
- During discovery, Flagg sought text messages sent and received by certain City officials and employees using City-issued text-messaging devices.
- The City had contracted with SkyTel, Inc. to provide the text-messaging devices and service; SkyTel retained stored copies of certain messages, including after the contract ended.
- Flagg subpoenaed SkyTel for the stored messages, asserting they might contain evidence relevant to municipal liability, policies and practices, and possible concealment or manipulation of information.
- The City refused to consent to SkyTel’s production; defendants moved to preclude discovery, arguing the Stored Communications Act (SCA) barred production of message content in civil discovery.
- An earlier order had found the messages potentially discoverable under Rule 26(b)(1) and established an in camera review protocol; this decision addressed whether the SCA required stopping discovery and what mechanism was permissible.
Issues
- Whether the SCA categorically bars production in civil litigation of electronic communications stored by a non-party service provider when sought by subpoena to the provider.
- If a provider subpoena is constrained by the SCA, whether the court may require the City to obtain and produce the messages under Fed. R. Civ. P. 34 based on the City’s “possession, custody, or control.”
Decision
- The court denied defendants’ motions to preclude discovery of the text messages on the ground that the SCA barred discovery categorically.
- The court rejected the contention that the SCA creates a sweeping civil-discovery immunity for communications stored with third-party providers.
- The court held that, even if the SCA limits compelling disclosure directly from the provider, the City could be ordered under Rule 34 to obtain the messages from its service provider and produce responsive, non-privileged communications.
- The court allowed discovery to proceed through a modified process directed at the City rather than by compelling SkyTel directly.
Legal Principles
- The SCA limits a service provider’s compelled or voluntary disclosure of stored communication content, but it does not automatically eliminate discovery obligations otherwise imposed on a litigant for materials within that litigant’s control.
- Under Fed. R. Civ. P. 34(a)(1), electronically stored information is discoverable when it is within a party’s “possession, custody, or control,” including when the party has the legal right or practical ability to obtain the information from a contracted service provider.
- Courts should avoid interpretations that would permit parties to defeat discovery of their own communications by storing them with third parties, absent clear statutory language requiring that result.
- When statutory limits restrict subpoenas to a non-party provider, courts may structure discovery orders to require the party-subscriber to retrieve and produce its communications consistent with the Federal Rules.
Conclusion
The court held that the SCA did not require halting discovery of City officials’ text messages and permitted discovery to continue by compelling the City, under Rule 34 “control,” to obtain and produce responsive messages held by its contracted text-messaging provider.