Negro v. Superior Court of Santa Clara Cnty.

230 Cal.App.4th 879

179 Cal.Rptr.3d 215

Matteo NEGRO, Petitioner,

v.The SUPERIOR COURT of Santa Clara County, Respondent;

Navalimpianti USA, Inc., et al., Real Parties in Interest.

H040146

Court of Appeal, Sixth District, California.

Filed October 21, 2014

As Modified November 18, 2014

Adleson, Hess & Kelly, Jeffrey A. Baruh, Joanne M. Wendell, Campbell, for Matteo Negro: Petitioner.

Idell & Seitel, Richard J. Idell, Ory B. Sandel, San Francisco, Gunster, Yoakley & Stewart, Joseph L. Raia, Miami, for Navalimpianti USA, Inc.: Real Party in Interest.

Perkins Coie, Timothy L. Alger, Palo Alto, Kevan Fornasero, San Francisco, for Google, Inc.: Real Parties in Interest.

RUSHING, P.J.

This original proceeding arises from efforts by real party in interest Navalimpianti USA, Inc. (Navalimpianti), to obtain copies of e-mail messages stored by real party in interest Google, Inc. (Google), on behalf of petitioner Matteo Negro. Navalimpianti caused a subpoena to be served on Google, which Negro moved to quash. Respondent court denied the motion, and ordered Google to produce the e-mails, based on its conclusion that Negro had consented, or was deemed to have consented, to their production. We hold that this order could not be sustained on the record before respondent court, and thus constituted an abuse of discretion when the order was made. Since then, however, Negro has been ordered by a Florida court to give his express consent to disclosure, and he has complied with that order by e-mailing Google and consenting to its production of the e-mails sought. We hold that this express consent takes the contemplated production outside of the Stored Communications Act, 18 United States Code section 2702 (SCA or Act), and permits Google to make the requested disclosure, notwithstanding claims by Negro to the contrary. We further hold that in light of Negro's valid express consent to disclosure, the Act poses no impediment to a subpoena compelling Google to produce the messages. We will therefore issue a compulsory writ directing respondent court to modify its order to conform to the consent actually given and to accommodate certain other concerns raised by the record.

BACKGROUND

A. Underlying Action

In March 2011 Navalimpianti filed a complaint in the Circuit Court of Dade County, Florida, against Negro and others. The complaint alleged that a number of Navalimpianti's former officers and employees, including Negro, had committed various breaches of duty pursuant to a conspiracy which culminated in their entry into competition with Navalimpianti.

In June 2012, Navalimpianti applied to the Florida court for authority to take Google's deposition, and seek documents from it, in California. In support of the motion Navalimpianti asserted that Negro had an e-mail address in Google's Gmail domain, which he had used to conduct business during the time period relevant to the complaint. Navalimpianti sought to discover "any communications between Matteo Negro, his co-defendants and the persons who participated in the conduct alleged in the pending Complaint." As described in an attached exhibit (Exhibit A), the materials sought were "[a]ll e-mails ... from any gmail account belonging to or maintained by Matteo Negro" under a specified user name, from June 1, 2009, through June 2010, between Negro and 14 specified persons or entities.

At the hearing on the motion, counsel for Navalimpianti indicated that efforts to obtain production of the e-mails directly from Negro had yielded only messages from Navalimpianti's own server. Counsel also reported that when he sought to question a supposedly knowledgeable witness about the existence of additional relevant e-mail messages, the witness had invoked the Fifth Amendment. Negro's chief ground of opposition to the motion was that the discovery should be directed to Google's agent for service of process in Florida. Counsel for both parties agreed that Google could not be expected to "filter" messages for relevance or privilege. Negro's counsel further asserted that if production were made, it would be necessary to "appoint[ ] a special master or someone to review all of this."

The Florida court granted the motion, authorizing Navalimpianti "and the applicable California court to issue a subpoena duces tecum for Google Inc. requesting the documents described in Exhibit A."

B. Subpoena and Petition to Quash

Navalimpianti engaged California Attorney Idell, who issued a deposition subpoena on December 19, 2012, directing Google's custodian of records to appear and produce the e-mails described in Exhibit A. The subpoena was duly served on Google, and on January 9, a Google representative faxed a letter to Idell objecting on multiple grounds. These included that "[s]ection 2702(a) of the federal Stored Communications Act prohibits Google from disclosing the content of electronic communications pursuant to a subpoena. [Citations.] The appropriate way to seek such content is to direct your request to the account holder who has custody and control of the data in the account. [Citations.] If the account holder is a party to the underlying litigation, you may serve a document request on the account holder for the content sought. [Citations.]"

Negro engaged California counsel, who filed a petition in respondent court to quash the subpoena under the Interstate and International Depositions and Discovery Act ( Code Civ. Proc., §§ 2029.100 – 2029.700 ). In support of the petition counsel contended that the subpoena sought materials beyond the scope of permissible discovery, was not sufficiently particularized, sought privileged and irrelevant matter, and was defective in various other respects. The initial moving papers did not invoke the Act.

C. Proceedings Before Florida Magistrate

Perhaps in reaction to Google's objections, Navalimpianti returned to the Florida court for an order directing Negro "to execute an Authorization to Release Electronic Communications in a form acceptable to Google." The matter was initially heard by a magistrate, who issued an order on June 12 in which she declined to reach the merits, reasoning that the question whether to compel Negro's consent was more appropriately addressed in California.

Navalimpianti filed exceptions to the magistrate's report, urging the Florida court to adopt instead an order which would (1) identify Negro as "the registered account holder and sole authorized user" of a specified Gmail address; (2) recite that Negro "consents to Google delivering and divulging the contents of his Gmail account"; (3) recite a "find[ing]" that this consent was "sufficient pursuant to the Stored Communications Act 18 U.S.C. § 2701 et seq "; (4) direct Negro to e-mail a copy of the order to Google attached to an e-mail message stating that "the user consents to Google's disclosure of" documents as described in Exhibit A to the original motion for appointment of a commissioner; and (5) call for production of the messages directly to counsel for Navalimpianti, unless Google was unable to limit disclosure to messages matching the described characteristics, in which case they were to be delivered to a third party.

D. Proceedings on Motion to Quash

Navalimpianti's objections to the magistrate's report were not heard in Florida until September 26, 2013. Meanwhile, in California, counsel for Navalimpianti issued a notice of deposition to Google, setting September 19 as the date for testimony and production of documents in accordance with the subpoena. Negro's California attorney now asserted for the first time that discovery was barred by the SCA. He insisted that Negro had not consented to disclosure, but had instead "litigated the issue in Florida and ... filed a petition in the Santa Clara County Superior Court to litigate the issue here." He asserted—quite correctly at the time—that the Florida magistrate had declined to "force consent through a Florida Court order.... Therefore, there is no consent for this Court to consider...."

On July 11, 2013, respondent court issued a tentative ruling denying the petition to quash and directing Google to produce the messages to counsel for Navalimpianti, who would have 15 days to prepare a privilege log to be delivered to counsel for Negro along with materials not withheld pursuant to objection. Any objections would be resolved by the Florida court. On the issue of consent, the tentative ruling stated that the court had the power to require Negro's consent; that prior efforts by Navalimpianti to obtain the messages directly from Negro had been unsuccessful; and that "[t]herefore, resort to the electronic data bailee would seem to be justified." It then continued, in language that would be incorporated in the order now under review, "The concept of court ordered consent as an exception to the [SCA] applies here. That order comes from the Florida court's order for appointment of a commissioner to take the testimony and documents from Google as well as from this court which now has denied the petition to quash the subpoena. It matters little whether the consent is the result of the coercion of discovery sanctions or the order of the court over the steadfast objection of the party." (Original italics.)

The motion to quash was continued while the parties attempted to negotiate an agreed resolution, which they failed to do, apparently because of differences over how the messages should be produced. Navalimpianti's Florida counsel declared that many of the messages were written in Italian, such that Negro's counsel would have to entrust them to his client for translation. Counsel therefore feared that production to counsel would "effectively result in the delivery of the Google production into the hands of Matteo Negro, not counsel." He felt obligated to oppose such a measure "[g]iven the history of this litigation and the failure of every Negro related party to produce any gmail communications." He therefore requested that the court "order Google to deliver...