Employee Email -- When Does an Employee Have a Right to Object to a Subpoena?

06 September 2011 Labor & Employment Law Perspectives Blog

One of the more challenging questions regarding email is when it is appropriate to produce email content to a party in litigation. In many cases, entities that are public service providers, usually Internet Service Providers, or ISPs, cannot produce the content of email in response to a civil subpoena. Employers face similar and related issues at times when employee emails are requested in a case.

This issue usually is presented when the sender or recipient of an email objects to the production of emails. A key first issue to consider is whether the person objecting to the production of emails has a legal right or “standing” to object. In most cases, courts have found that persons who are not parties to actions do not have standing to move to quash a subpoena. However, other courts have found that third parties have standing to quash subpoenas in certain circumstances. In J.T. Shannon Lumber Co., Inc. v. Gilco Lumber, Inc., a district court found that “because the documents sought by the plaintiff are the personal documents and the details of the email accounts of the defendant employees, the defendants have standing to seek to quash this subpoena as they have a personal interest in the documents sought from the internet service provider.” This type of analysis also has been applied in the social networking context. In Crispin v. Christian Audigier, Inc., the court found that:

… an individual has a personal right in information in his or her profile and inbox on a social networking site and his or her webmail inbox in the same way that an individual has a personal right in employment and bank records. As with bank and employment records, this personal right is sufficient to confer standing to move to quash a subpoena seeking such information. The court therefore finds that Crispin had standing to bring a motion to quash.1

Before the email content is produced, employers should assess whether there are any parties that could assert a right of privacy regarding electronic communications, and whether they have standing to assert that right in some way.

1 Id., see also, Chasten v. Franklin, C10-80205 MISC JW (HRL), (N.D.Cal. 2010).

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Related Services