3. The Federal Rules Governing the Discovery of a Party's Electronically Stored Information
One final subject warrants consideration before addressing the merits of Defendants' SCA-based challenge. Although Plaintiff chose third-party subpoenas as the vehicle for seeking the production of SkyTel text messages, the Court finds it instructive to consider whether Plaintiff could have achieved the same objective through an ordinary Fed.R.Civ.P. 34 request for production directed at the Defendant City. As discussed below, the Court answers this question in the affirmative.
2Under Rule 34(a), a party may request the production of documents and various other categories of items that are “in the responding party's possession, custody, or control.” Fed.R.Civ.P. 34(a)(1). The items that may be sought under the Rule include “electronically stored information,” Fed.R.Civ.P. 34(a)(1), which plainly encompasses both electronic communications and archived copies of such communications that are preserved in electronic form, see
Fed.R.Civ.P. 34, Advisory Committee Note to 2006 Amendments; Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 317 nn. 36–38 (S.D.N.Y.2003).
Thus, the archived text *353 messages under consideration here fit comfortably within the scope of the materials that a party may request under Rule 34.
As the language of the Rule makes clear, and as the courts have confirmed, a request for production need not be confined to documents or other items in a party's possession, but instead may properly extend to items that are in that party's “control.” Fed.R.Civ.P. 34(a)(1); see also
Cooper Industries, Inc. v. British Aerospace, Inc., 102 F.R.D. 918, 919 (S.D.N.Y.1984) (“Documents need not be in the possession of a party to be discoverable, they need only be in its custody or control.”). The Sixth Circuit and other courts have held that documents are deemed to be within the “control” of a party if it “has the legal right to obtain the documents on demand.” In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir.1995); see also
Mercy Catholic Medical Center v. Thompson, 380 F.3d 142, 160 (3d Cir.2004); Searock v. Stripling, 736 F.2d 650, 653 (11th Cir.1984).
In light of the Rule's language, “[a] party responding to a Rule 34 production request cannot furnish only that information within his immediate knowledge or possession; he is under an affirmative duty to seek that information reasonably available to him from his employees, agents, or others subject to his control.” Gray v. Faulkner, 148 F.R.D. 220, 223 (N.D.Ind.1992) (internal quotation marks and citation omitted).
The case law illustrates the variety of circumstances under which a party may be deemed to have “control” over materials not in its possession. First, the requisite “legal right to obtain” documents has been found in contractual provisions that confer a right of access to the requested materials. See, e.g.,
Anderson v. Cryovac, Inc., 862 F.2d 910, 928–29 (1st Cir.1988); Golden Trade, S.r.L. v. Lee Apparel Co., 143 F.R.D. 514, 525 (S.D.N.Y.1992). The courts also have held that documents in the possession of a party's agent—for example, an attorney—are considered to be within the party's control. See, e.g.,
Commercial Credit Corp. v. Repper (In re Ruppert), 309 F.2d 97, 98 (6th Cir.1962); American Society for the Prevention of Cruelty to Animals v. Ringling Bros. & Barnum & Bailey Circus, 233 F.R.D. 209, 212 (D.D.C.2006); Gray, 148 F.R.D. at 223. As the Sixth Circuit observed, “[i]f this were not so, then the client could always evade his duty to produce by placing the documents with his attorney.” In re Ruppert, 309 F.2d at 98; see also
Cooper Industries, 102 F.R.D. at 920 (ordering the production of documents in the possession of the defendant corporation's overseas affiliate, and reasoning that if this party “could so easily evade discovery” by “destroying its own copies and relying on ... copies maintained by its affiliate abroad,” then “every United States company would have a foreign affiliate for storing sensitive documents”).
Next, the courts have found that a corporate party may be deemed to have control over documents in the possession of one of its officers or employees. In Riddell Sports Inc. v. Brooks, 158 F.R.D. 555, 558 (S.D.N.Y.1994), for example, the defendant sought to compel the production of tape recordings of his telephone conversations with an officer of the plaintiff corporation, Mr. Wingo, who had not been named a party to the suit. The plaintiff argued that these tapes belonged to Wingo, and not the corporation, “and therefore should have been sought by subpoena served on him personally.” Riddell Sports, 158 F.R.D. at 558. The court disagreed, explaining that when materials are “created in connection with the officer's functions as a corporate employee, the corporation has a proprietary interest in them and the officer has a fiduciary duty to turn them over on demand.” 158 F.R.D. at 559. Accordingly, because Wingo made the recordings at issue “in furtherance of his functions” as an officer of the plaintiff corporation, the court found that the tapes were within the control of this party, and thus “must be disclosed in response to a proper notice for production.” 158 F.R.D. at 559.
*354 Indeed, this principle extends not just to documents in the actual possession of a non-party officer or employee of a corporate party, but also to materials that the officer or employee has a legal right to obtain. In Herbst v. Able, 63 F.R.D. 135, 136 (S.D.N.Y.1972), for instance, the plaintiffs sought the production of transcripts of testimony given by non-party employees of the defendant corporation, Douglas Aircraft Company, at a private hearing before the Securities and Exchange Commission (“SEC”). Douglas Aircraft objected to this request, stating that it did not have copies of these transcripts in its possession, and citing an SEC policy not to make such transcripts available to private litigants. Under another SEC rule, however, each witness was entitled to a transcript of his or her own testimony. In light of this rule, the court held that the plaintiffs were entitled to the requested transcripts, which Douglas Aircraft could obtain through its employees:
Rule 34(a) plainly provides that a party may request another party to produce any designated document which is within the possession, custody or control of the party of whom the request is made. Plaintiffs, consequently, may request Douglas to have its non-defendant employees procure copies of their private testimony before the SEC so that Douglas may give same to plaintiffs. Plainly Douglas' employees are persons within its control. The testimony of these employees relates to Douglas' affairs.
Herbst, 63 F.R.D. at 138; see also In re Domestic Air Transportation Antitrust Litigation, 142 F.R.D. 354, 356 (N.D.Ga.1992) (ordering the defendant corporations to secure the consent of their employees in order to obtain and produce transcripts of deposition testimony given by these employees in a Department of Justice investigation).
Finally, in a relatively recent decision, a district court found that defendant El Paso Corporation had “control,” within the meaning of Rule 34(a)(1), of electronic records maintained by a third party on the company's behalf. See
Tomlinson v. El Paso Corp., 245 F.R.D. 474, 477 (D.Colo.2007). In that case, defendant El Paso had a duty under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., and its implementing regulations to ensure that its employee benefit records were “maintained in reasonable order and in a safe and accessible place, and in such manner as they may be readily inspected or examined.” Tomlinson, 245 F.R.D. at 477 (quoting 29 C.F.R. § 2520.107–1(b)). Although El Paso employed a third party, Mercer Human Resource Consulting, to administer its employee pension plan and maintain the electronic records associated with this plan, the court held that El Paso could not delegate its recordkeeping duties under ERISA to this third party. 245 F.R.D. at 477. Rather, the court held that El Paso retained control over the pension plan data held by Mercer, and thus had the “authority and ability to obtain” and produce the data requested by the plaintiff plan participants. 245 F.R.D. at 477.
3Applying Rule 34(a)(1) and its attendant case law here, the Court readily concludes that the Defendant City of Detroit has “control” over the text messages preserved by third party SkyTel pursuant to its contractual relationship with the City. To be sure, and as noted earlier, the Court's inquiry on this point is significantly hindered by the City's failure to produce any meaningful documentation that might reveal the terms of its agreements with SkyTel. In response to the Court's May 6, 2008 order directing it to produce copies of “any and all contracts” pursuant to which SkyTel provided text messaging services to the City and its employees, the City furnished a handful of one-page purchase orders, partial and unsigned SkyTel “Corporate Account Agreement” forms, and the like, none of which discloses the specific nature and extent of the services provided by SkyTel to the City during the course of their contractual relationship. Under this record, it is impossible to make any definitive pronouncements about the degree of control granted to the City under its agreements with SkyTel.
Nonetheless, the record includes several other indicia of the City's control over the text messages maintained by SkyTel. First and foremost, the City's present motion is premised upon such control, first asserting *355 that the City has the ability to consent to SkyTel's production of the text messages at issue, but then stating that it is unwilling to do so. Specifically, in its motion and brief in support, the City affirmatively states that “[p]ursuant to [its] contract” with SkyTel, it was the “customer or subscriber” of the text messaging service provided by SkyTel. (Defendant City's Motion at 3; Br. in Support at 1.) Quoting the SCA provision permitting the disclosure of the contents of a communication “with the lawful consent of ... the subscriber,” the City then states that “as subscriber to the subject SkyTel text messages,” it “does not consent to the disclosure of these communications, as required by the SCA before such communications are divulged.” (Defendant City's Motion, Br. in Support at 3 (citing 18 U.S.C. § 2702(b)(3)).)
Yet, if the City can block
the disclosure of SkyTel messages by withholding
its consent, it surely follows that it can permit
the disclosure of these communications by granting
its consent. This acknowledged power readily qualifies as a “legal right to obtain” the messages held by SkyTel, and hence constitutes “control” within the meaning of Rule 34(a)(1). See
In re Bankers Trust Co., 61 F.3d at 469. Indeed, the courts recognized precisely this point in Herbst, supra, 63 F.R.D. at 138, and In re Domestic Air Transportation Antitrust Litigation, 142 F.R.D. at 356, determining in each case that a party had control over materials in the possession of a third party by virtue of its ability to secure the consent that was necessary to obtain a copy of these materials.
Moreover, the above-cited case law confirm the obvious point that it is immaterial whether a party, such as the City here, might prefer not to give the necessary consent—if a party has the requisite control over a requested document, it must exercise this control in order to comply with the mandate of Rule 34. See, e.g.,
Gray, supra, 148 F.R.D. at 223.
4The City's control over the SkyTel text messages is further confirmed by the Michigan law governing the maintenance and disclosure of public records. In particular, Michigan's Freedom of Information Act (“FOIA”) mandates that, subject to various exceptions, a “public body shall furnish a requesting person a reasonable opportunity for inspection and examination of its public records.” Mich. Comp. Laws § 15.233(3). There is no question that the Defendant City is a “public body” under the FOIA, see
Mich. Comp. Laws § 15.232(d)(iii), and that at least some of the SkyTel text messages satisfy the statutory definition of “public records,” insofar as they capture communications among City officials or employees “in the performance of an official function,” see
Mich. Comp. Laws § 15.232(e); see also
City of Warren v. City of Detroit, 261 Mich.App. 165, 680 N.W.2d 57, 62 (2004) (confirming that the statutory definition of a “public record” includes information captured in electronic form); Farrell v. City of Detroit, 209 Mich.App. 7, 530 N.W.2d 105, 109 (1995) (same).
Indeed, the City has acknowledged that at least some of these communications are “public records,” both through a policy directive promulgated to its employees—a directive which, among other things, cautions “users of the City's electronic communications *356system” to “bear in mind that, whenever creating and sending an electronic communication, they are almost always creating a public record which is subject to disclosure,” (see
Plaintiff's Response, Ex. 9, Directive for the Use of the City of Detroit's Electronic Communications System at 2)
—and through its appeal in its present motion to the deliberative process privilege—a privilege which, as the City recognizes, encompasses only communications among City officials and employees pursuant to “their official positions within the City of Detroit government,” (Defendant City's Motion at 7).
Because at least some of the text messages maintained by SkyTel are “public records” within the meaning of Michigan's FOIA, it would be problematic, to say the least, to conclude that the City lacks a legal right to obtain these records as necessary to discharge its statutory duty of disclosure. Such a conclusion also would be contrary to the pertinent Michigan case law. First, the Michigan courts have held that the FOIA duty of disclosure, like the Rule 34 duty of production, extends to public records within the possession or control
of a public body. See
MacKenzie v. Wales Township, 247 Mich.App. 124, 635 N.W.2d 335, 339 (2001); Easley v. University of Michigan, 178 Mich.App. 723, 444 N.W.2d 820, 822 (1989). Next, while there is no obligation under the Michigan FOIA to create public records, the statute does impose a “duty to provide access” to those public records that have been created and are the subject of a proper FOIA request, and this obligation “inherently includes the duty to preserve and maintain such records until access has been provided or a court executes an order finding the record to be exempt from disclosure.” Walloon Lake Water System, Inc. v. Melrose Township, 163 Mich.App. 726, 415 N.W.2d 292, 295 (1987) (footnote omitted); see also
Mich. Comp. Laws § 15.233(3) (“A public body shall protect public records from loss, unauthorized alteration, mutilation, or destruction.”). In this respect, then, the City here stands on a similar footing to the defendant corporation in Tomlinson, supra, 245 F.R.D. at 477, which was found to have control over electronic records in the possession of a third party by virtue of its statutory obligation to maintain these records and make them available for examination or inspection.
Indeed, the decision of the Michigan Court of Appeals in MacKenzie, supra, is particularly instructive here. In that case, the defendant townships contracted with a third party, the City of Port Huron, to prepare property tax notices to be issued to township property owners. Under this contract, the townships supplied paper documents to Port Huron, which then “created magnetic computer tapes containing the pertinent tax information on each property owner.” MacKenzie, 635 N.W.2d at 336. At the conclusion of this process, Port Huron returned the paper documents but retained the computer tapes. The plaintiff real estate broker submitted a FOIA request to the defendant townships seeking a copy of the computer tapes, but the townships resisted this request, contending that the tapes were not in their possession and that they were under no obligation to obtain them from Port Huron.
The Michigan Court of Appeals rejected the townships' arguments and ordered them to disclose the computer tapes to the plaintiffs. In so ruling, the court first *357 found it immaterial that a third party, and not the townships, had created and retained possession of the tapes. Citing the FOIA's definition of a “public record” as including documents “used” by a public body in the performance of an official function, the court concluded that the townships had “used” the computer tapes, “albeit indirectly,” by delegating to a third party, Port Huron, the “clerical task” of “prepar[ing] tax notices for mailing” and providing the information needed to perform this function. MacKenzie, 635 N.W.2d at 338. The court reasoned that this delegation did not defeat the townships' duty of disclosure, as public bodies “may not avoid their obligations under the FOIA by contracting for a clerical service that allows them to more efficiently perform an official function.” 635 N.W.2d at 338.
Of particular significance here, the court next found that the defendant townships “maintained a measure of control over the tapes,” by virtue of having provided the data used to created the tapes, and as evidenced by a letter from one of the townships to the plaintiff stating that Port Huron would not release the tapes without permission and that the township did not intend to give any such permission. 635 N.W.2d at 339. In light of this retained control, the court deemed it legally insignificant that the tapes were not in the townships' possession. 635 N.W.2d at 339 (citing Mich. Comp. Laws § 15.240(4), which authorizes the courts to order the production of “all or a portion of a public record wrongfully withheld, regardless of the location of the public record”). Rather, the court held that the townships were obligated to secure the production of the computer tapes, “whether by signing the release provided by Port Huron or [by] obtaining copies of the tapes and forwarding them to plaintiff.” 635 N.W.2d at 339. This decision in MacKenzie provides a compelling basis for concluding that the Defendant City has control, within the meaning of Rule 34(a)(1), over any “public records” that might be retained by third party SkyTel under its contract with the City.
Finally, while the record does not disclose the terms of the City's contracts with SkyTel, it simply defies belief that SkyTel would maintain an archive of communications—many of which, as discussed, presumably qualify as public records and concern official City business—without providing any sort of contractual mechanism for the City to retrieve these messages. Presumably, a profit-seeking business such as SkyTel would not maintain such an archive unless it was compensated for this service, and the City, in turn, would not pay for this service unless it could gain access to the archive when desired.
In the absence of any evidence to the contrary, then, the Court assumes that the City has at least some sort of contractual right of access to the text messages preserved by SkyTel in the course of its contractual relationship with the City.
Given all these indicia of control, the Court finds that the text messages maintained by SkyTel would be an appropriate subject of a Rule 34 request for production directed at the Defendant City of Detroit. Pursuant to such a request, Plaintiff would be entitled to review any and all nonprivileged communications that are relevant to his claims, see
Fed.R.Civ.P. 26(b)(1), absent some basis for concluding that these communications are beyond the reach of civil discovery. This, of *358 course, leads the Court back to the proposition advanced in Defendants' motions—namely, that the SCA erects just such a bar to the production of any text messages preserved by SkyTel. Accordingly, the Court turns to this question.
4. The SCA Does Not Override Defendants' Obligation to Produce Relevant, Nonprivileged Electronic Communications Within Their Possession, Custody, or Control.
5As noted earlier, Defendants' challenge to Plaintiff's request for disclosure of the SkyTel text messages rests upon what they view as a straightforward reading of the terms of the SCA. In particular, they first point to the SCA provision that generally prohibits a service provider such as SkyTel from (i) “knowingly divulg[ing] to any person or entity the contents of a communication while in electronic storage by” an electronic communication service (“ECS”), 18 U.S.C. § 2702(a)(1), or (ii) “knowingly divulg[ing] to any person or entity the contents of any communication which is carried or maintained on” a remote computing service (“RCS”), 18 U.S.C. § 2702(a)(2). Next, while the SCA recognizes various exceptions to this general rule of non-disclosure, Defendants submit that the only relevant exception is disclosure “with the lawful consent of” the originator or intended recipient of a communication or (in the case of an RCS) the subscriber to the service, 18 U.S.C. § 2702(b)(3), and they state their unwillingness to give the requisite consent. It follows, in Defendants' view, that SkyTel may not produce any text messages in this case, whether pursuant to the subpoenas issued by Plaintiff or in accordance with the protocol established in this Court's March 20, 2008 opinion and related order.
In analyzing this contention, the Court initially proceeds under the premise that Plaintiff has sought the production of SkyTel text messages under a Rule 34 document request directed at the Defendant City, rather than a third-party subpoena directed at SkyTel.
Under this scenario, SkyTel would not be called upon to produce any text messages directly to Plaintiff. Rather, any such production would pass through an intermediary, the Defendant City, which would be obligated under Rule 34 and the above-cited case law to obtain the text messages from SkyTel and make them available to Plaintiff as materials within its “control.”
There is reason to believe that the SCA might apply differently to (i) direct production to an outside party such as Plaintiff and (ii) production to a customer such as the City. First, the Court notes that the provisions upon which Defendants rely here prohibit a service provider from “divulg[ing]” the contents of a communication. 18 U.S.C. § 2702(a)(1)-(2). Although disclosure to an outside party plainly would qualify as “divulg[ing]” the contents of a communication, it is not self-evident that a service provider “divulge[s]” the contents of a communication merely by retrieving the communication from an archive and forwarding it to a customer pursuant to a contractual obligation. To “divulge” information ordinarily entails “mak[ing] known” or revealing something which is “private or secret.” Webster's Ninth New Collegiate Dictionary at 370 (1986); see also
Merriam–Webster Online Dictionary, available at http://www.merriam-webster.com/dictionary/divulge.
By fulfilling a request from its customer, the City, to retrieve and forward communications from an archive that has been created and maintained at the customer's request, SkyTel cannot necessarily be characterized as having “divulged” any information to anyone outside the scope of the confidential relationship that exists between SkyTel and its customer.
If the archive and retrieval service provided by SkyTel qualifies as an RCS,
it is still more doubtful that this sort of retrieval would run afoul of § 2702(a). Under the pertinent subsection of § 2702(a), a service provider that provides an RCS is prohibited from “divulg[ing]” the “contents of any communication which is carried or maintained on *359 that service ... on behalf of ... a subscriber or customer” only if
the service provider “is not authorized to access the contents of any such communications for purposes of providing any services other than storage or computer processing.” 18 U.S.C. § 2702(a)(2). Yet, to the extent that the contracts between the City and SkyTel provide a mechanism for the City to request the retrieval of text messages from the archive maintained by SkyTel, such a request presumably would supply the necessary “authoriz[ation]” for SkyTel to “access” the communications in this archive “for purposes of providing a [ ] service[ ] other than storage or computer processing”—namely, the service of retrieval. It is not a foregone conclusion, then, that SkyTel necessarily would engage in any activity prohibited under § 2702(a) by fulfilling the City's demand to retrieve text messages from an archive maintained at the behest of this customer.
Next, even assuming that SkyTel were deemed to engage in activity within the scope of § 2702(a) by retrieving text messages from an archive and forwarding them to the City, the Court would not so readily conclude, as Defendants do, that only the “lawful consent” exception is potentially applicable here. Another exception permits the contents of a communication to be divulged “as may be necessarily incident to the rendition of the service” being provided. 18 U.S.C. § 2702(b)(5). As discussed earlier, it is difficult to see how an archive of text messages would be of any use or value to a customer if the service provider did not also offer a mechanism for retrieving messages from this archive. Seemingly, then, SkyTel's retrieval of messages from the archive it has maintained on the City's behalf is “necessarily incident to” its ability to carry out the text message transmission and storage services it has agreed to provide to the City.
In any event, even if Defendants are correct in their contention that SkyTel cannot produce any communications in this case without the “lawful consent” called for under § 2702(b)(3), the Court finds that the Defendant City has both the ability and the obligation to secure any such consent that the SCA may require. As observed earlier, the consent that is needed to satisfy § 2702(b)(3) depends upon the sort of service being provided. If this service is deemed to be an RCS, then the consent of the “subscriber” is sufficient to permit the service provider to divulge the contents of a communication maintained on this service. 18 U.S.C. § 2702(b)(3).
In contrast, if a service is determined to be an ECS, then only the “lawful consent of the originator or an addressee or intended recipient” of a communication will suffice to overcome the prohibition against divulging this communication. 18 U.S.C. § 2702(b)(3).
This distinction between an ECS and an RCS was central to the rulings of the district and appellate courts in Quon, with the district court initially determining that the service at issue in that case was an RCS. See
Quon, 445 F.Supp.2d at 1137. In that case, the defendant municipality, the City of Ontario, California, entered into a contract with a service provider, Arch Wireless, that called for alphanumeric text-messaging devices and related wireless communication services to *360 be provided to various city employees. In an effort to determine whether and to what extent these devices were being used for personal rather than work-related purposes, the city's chief of police ordered an audit of the text messages sent and received by two police officers over a two-month period. When this audit triggered an internal affairs investigation and other adverse consequences for the subjects of the audit and others whose communications were encompassed by the review, one of the police officers and several other city employees brought suit against Arch Wireless, the City of Ontario, and various city officials, asserting federal claims under the SCA and 42 U.S.C. § 1983 as well as claims under California law.
Arch Wireless moved for summary judgment in its favor on the plaintiffs' SCA claim, arguing that the service it provided was an RCS and that the city, by requesting the disclosure of text messages maintained on this service, had provided the subscriber consent necessary to permit these disclosures without violating the prohibitions set forth in § 2702(a). In addressing this question, the district court initially observed that Arch Wireless appeared to have provided a “computer storage” service that was characteristic of an RCS, as the messages it had provided to the city were retrieved from long-term storage after already having been delivered and read by their recipients. See
Quon, 445 F.Supp.2d at 1130–31. Nonetheless, the court acknowledged that the maintenance of the text message in storage was not enough, standing alone, to distinguish an RCS from an ECS, because the SCA expressly contemplates that an ECS also entails the “electronic storage” of communications. See
Quon, 445 F.Supp.2d at 1134–36; see also
18 U.S.C. § 2702(a)(1) (prohibiting a provider of an ECS from divulging “the contents of a communication while in electronic storage by that service”).
Moreover, while it was clear that Arch Wireless provided an ECS to the city by supplying text messaging devices and associated services that enabled city employees to send and receive electronic communications, see
18 U.S.C. § 2510(15), the district court construed the SCA and its legislative history as eschewing an “all or nothing” approach to characterizing a service provider's activities, and as instead recognizing that a service provider such as Arch Wireless could provide both
RCSs and ECSs to a single customer. Quon, 445 F.Supp.2d at 1136–37; see also
Orin S. Kerr, A User's Guide to the Stored Communications Act, and a Legislator's Guide to Amending It, 72 Geo. Wash. L.Rev. 1208, 1215–16 (2004) (noting the “functional nature of the definitions of ECS and RCS,” with the result that a “provider can act as an RCS with respect to some communications [and] an ECS with respect to other communications”).
*361 Thus, the key question before the district court was whether the specific service that gave rise to the plaintiffs' SCA claims—i.e.,
Arch Wireless's retrieval of text messages from storage after they had been transmitted and read by their recipients—should be deemed to be an RCS or an ECS. This, in turn, required the court to distinguish between the “electronic storage” utilized by an ECS and the “computer storage” provided by an RCS. As to the former, the statute defines “electronic storage” as “any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof,” or “any storage of such communication by an electronic communication service for purposes of backup protection of such communication.” 18 U.S.C. § 2510(17). Because the text messages that Arch Wireless had retrieved from storage and forwarded to the city had already been transmitted and read in the past, their continued storage could not be construed as “temporary” or “incidental to” their transmission. Rather, the district court reasoned that the characterization of Arch Wireless's service as an ECS or an RCS turned upon whether the text messages had been stored “for purposes of backup protection.” See
Quon, 445 F.Supp.2d at 1136.
The court concluded that this was not the purpose for which Arch Wireless had stored the text messages that it subsequently provided to the city. In so ruling, the court relied principally on the Ninth Circuit's observation in an earlier case that a service does not store messages “for backup purposes” if it is “the only place a user stores his messages.” Quon, 445 F.Supp.2d at 1136 (quoting Theofel v. Farey–Jones, 359 F.3d 1066, 1077 (9th Cir.2004)). The district court reasoned that “Arch Wireless' service would meet this definition,” where the storage it provided was “long-term” and was “apparently ... the single place where text messages, after they have been read, are archived for a permanent record-keeping mechanism.” Quon, 445 F.Supp.2d at 1136; see also
Theofel, 359 F.3d at 1076 (reasoning that an internet service provider “that kept permanent copies of temporary messages could not fairly be described as ‘backing up’ those messages”). Consequently, the court held that the service provided by Arch Wireless was an RCS, and that any disclosures of communications maintained on this service were permissibly made with the consent of the subscriber City of Ontario. See
Quon, 445 F.Supp.2d at 1137.
In its recent decision, however, the Ninth Circuit reversed this aspect of the district court's ruling, and held that “Arch Wireless provided an ‘electronic communication service’ to the City.” Quon, 529 F.3d at 903. This decision appears to rest on the “all-or-nothing” approach rejected by the district court, with the Ninth Circuit broadly “categoriz[ing] Arch Wireless” as providing a service for sending and receiving electronic communications, as opposed to a “computer storage” service. 529 F.3d at 901. While the court recognized that Arch Wireless did “archiv[e] ... text messages on its server,” it noted that both ECSs and RCSs entail some form of “storage,” and it found that Arch Wireless did not provide the “virtual filing cabinet” function that was cited in the legislative history of the SCA as characteristic of an RCS. 529 F.3d at 901–02.
The Ninth Circuit then explained that the district court's reliance on its Theofel decision was misplaced, and that this prior ruling, properly understood, actually led to the opposite conclusion. As observed in Quon, the court in Theofel held that an internet service provider (“ISP”) had stored e-mail messages on its server “for purposes of backup protection,” since “[a]n obvious purpose for storing a message on an ISP's server after delivery is to provide a second copy of the message in the event that the user needs to download it again—if, for example, the message is accidentally erased from the user's own computer.” Theofel, 359 F.3d at 1075. The court in Quon found that this ruling governed the case before it, where “[t]he service provided by [the ISP in Theofel] is closely analogous to Arch Wireless's storage of [the plaintiffs'] messages,” and where it was “clear that the messages were archived for ‘backup protection,’ just as they were in Theofel.” Quon, 529 F.3d at 902.
Finally, the Ninth Circuit addressed certain language in Theofel that Arch Wireless *362 (and the district court) viewed as supporting the conclusion that its storage of messages was not
for “backup protection”:
Arch Wireless contends that our analysis in Theofel of the definition of “backup protection” supports its position. There, we noted that “[w]here the underlying message has expired in the normal course, any copy is no longer performing any backup function. An ISP that kept permanent copies of temporary messages could not fairly be described as ‘backing up’ those messages.” [Theofel, 359 F.3d] at 1070. Thus, the argument goes, Arch Wireless's permanent retention of the [plaintiffs'] text messages could not have been for backup purposes; instead, it must have been for storage purposes, which would require us to classify Arch Wireless as an RCS. This reading is not persuasive. First, there is no indication in the record that Arch Wireless retained a permanent copy of the text messages or stored them for the benefit of the City; instead, the [declaration of an Arch Wireless employee] simply states that copies of the messages are “archived” on Arch Wireless's server. More importantly, Theofel's holding—that the e-mail messages stored on [the ISP's] server after delivery were for “backup protection,” and that [the ISP] was undisputedly an ECS—forecloses Arch Wireless's position.
Quon, 529 F.3d at 902–03. Thus, the court held that Arch Wireless provided an ECS to the city, and that it violated the SCA by disclosing transcripts of text messages to the city without first securing the consent of the originator, addressee, or intended recipient of each such communication. 529 F.3d at 903.
Upon carefully reviewing the district and appellate court rulings in Quon, this Court finds the lower court's reasoning more persuasive, on a number of grounds. First, the Court reads the Ninth Circuit's decision in that case—and, to some extent, the court's prior ruling in Theofel—as resting on a unitary approach, under which service providers contract with their customers to provide either an ECS or an RCS, but not both. Yet, the prohibitions against disclosure set forth in § 2702(a) focus on the specific type of service being provided (an ECS or an RCS) with regard to a particular communication, and do not turn upon the classification of the service provider or on broad notions of the service that this entity generally or predominantly provides. Thus, the Court is inclined to agree with the view of the district court in Quon that “Congress took a middle course” in enacting the SCA, under which a service provider such as SkyTel may be deemed to provide both an ECS and an RCS to the same customer. Quon, 445 F.Supp.2d at 1137; see also
In light of the SCA's functional, context-specific definitions of an ECS and an RCS, it is not dispositive that SkyTel indisputably did provide an ECS to the City of Detroit in the past, or that it presumably kept text messages in “electronic storage” at times in connection with the ECS that it provided. Rather, the ECS/RCS inquiry in this case turns upon the characterization of the service that SkyTel presently
provides to the City, pursuant to which the company is being called upon to retrieve text messages from an archive of communications sent and received by City employees in years past using SkyTel text messaging devices. The resolution of this issue, in turn, depends upon whether SkyTel has maintained this archive “for purposes of backup protection,” 18 U.S.C. § 2510(17)(B), so that its contents may be deemed to be held in “electronic storage” by an ECS, 18 U.S.C. § 2702(a)(1), or whether this archive is more properly viewed as “computer storage” offered by an RCS, 18 U.S.C. § 2711(2).
Whatever might be said about the reasoning through which the district and appellate courts in Quon determined that the archive of text messages in that case did or did not serve the purpose of “backup protection,”
*363 the circumstances of this case are far clearer. SkyTel is no longer providing, and has long since ceased to provide, a text messaging service to the City of Detroit—the City, by its own admission, discontinued this service in 2004, and the text messaging devices issued by SkyTel are no longer in use. Consequently, any archive of text messages that SkyTel continues to maintain on the City's behalf constitutes the only
available record of these communications, and cannot possibly serve as a “backup” copy of communications stored elsewhere. In this respect, this Court is in complete agreement with the Ninth Circuit's observations in Theofel, 359 F.3d at 1076–77, that a service provider “that kept permanent copies of temporary messages could not fairly be described as ‘backing up’ those messages,” and that “messages are not stored for backup purposes” if a computer repository is “the only place” where they are stored. Regardless of whether these observations applied to the services at issue in Theofel and Quon, the Court concludes that they apply with full force here—the service provided by SkyTel may properly be characterized as a “virtual filing cabinet” of communications sent and received by City employees. See
Quon, 529 F.3d at 902. The Court finds, therefore, that the archive maintained by SkyTel constitutes “computer storage,” and that the company's maintenance of this archive on behalf of the City is a “remote computing service” as defined under the SCA.
It is only a short step from this finding to the conclusion that the Defendant City is both able and obligated to give its consent, as subscriber, to SkyTel's retrieval of text messages so that the City may comply with a Rule 34 request for their production. As previously discussed, a party has an obligation under Rule 34 to produce materials within its control, and this obligation carries with it the attendant duty to take the steps necessary to exercise this control and retrieve the requested documents. Moreover, the Court already has explained that a party's disinclination to exercise this control is immaterial, just as it is immaterial whether a party might prefer not to produce documents in its possession or custody. Because the SkyTel archive includes communications that are potentially relevant and otherwise discoverable under the standards of Rule 26(b)(1), and because the City has “control” over this archive within the meaning of Rule 34(a)(1) and the case law construing this term, the City must give any consent that might be required under the SCA in order to permit SkyTel to retrieve communications from this archive and forward them to the Magistrate Judges in accordance with the protocol established in this Court's March 20, 2008 order.
Contrary to Defendant Kilpatrick's contention in his response to the Detroit Free Press's amicus
brief, it is not an “oxymoron” to conclude, under the particular circumstances presented here, that a party may be compelled to give its consent. It is a necessary and routine incident of the rules of discovery that a court may order disclosures that a party would prefer not to make. As illustrated by the survey of Rule 34 case law earlier in this opinion, this power of compulsion encompasses such measures as are necessary to secure a party's compliance with its discovery obligations. In this case, the particular device that the SCA calls for is “consent,” and Defendant Kilpatrick has not cited any authority for the proposition that a court lacks the power to ensure that this necessary authorization is forthcoming from a party with the means to provide it. Were it otherwise, a party could readily avoid its discovery obligations by warehousing its documents with a third party under strict instructions to release them only with the party's “consent.”
6Alternatively, even if the Court is mistaken in its conclusion that the service provided by SkyTel is an RCS, there is ample basis to conclude that the City nonetheless *364 has an obligation to secure the requisite consent from its employees that would permit SkyTel to proceed with its retrieval of communications. This, after all, is precisely what the courts have held in the Rule 34 case law discussed earlier, including Riddell Sports, 158 F.R.D. at 559, Herbst, 63 F.R.D. at 138, and In re Domestic Air Transportation Antitrust Litigation, 142 F.R.D. at 356. In particular, Riddell Sports, 158 F.R.D. at 559, holds that a corporate party has control over, and thus may be compelled to produce, documents in the possession of one of its officers or employees, and that the officer or employee has a fiduciary duty to turn such materials over to the corporation on demand. Next, Herbst, 63 F.R.D. at 138, and In re Domestic Air Transportation Antitrust Litigation, 142 F.R.D. at 356, illustrate the principle that the Rule 34(a) concept of “control” extends to a company's control over its employees, such that a corporate party may be compelled to secure an employee's consent as necessary to gain access to materials that the employee has the right to obtain. In accordance with these authorities, the Court finds that the City of Detroit is both able and obligated to obtain any consent from its employees that would be necessary to permit SkyTel to retrieve the communications of City employees from its archive and forward them to the Magistrate Judges for review.
This conclusion is confirmed by the case law construing the same or similar “consent” provisions found in the SCA's close cousin, the federal Wiretap Act, 18 U.S.C. § 2510 et seq. Under one such provision, the interception of a “wire, oral, or electronic communication” is permissible “where one of the parties to the communication has given prior consent to such interception.” 18 U.S.C. § 2511(2)(d). Another provision, like its counterpart at § 2702(b)(3) of the SCA, permits a “person or entity providing electronic communication service” to “divulge the contents of” a communication “with the lawful consent of the originator or any addressee or intended recipient of such communication.” 18 U.S.C. § 2511(3)(b)(ii).
The courts have held that the requisite consent to interception or disclosure may be implied under circumstances analogous to those presented here. In Griffin v. City of Milwaukee, 74 F.3d 824 (7th Cir.1996), for example, the plaintiff was employed as a telephone operator for the Milwaukee police department, and she alleged that her employer had illegally monitored and intercepted her personal telephone calls. In affirming the district court's award of summary judgment in the employer's favor, the court noted that the plaintiff had been informed that “workstation telephone calls might be monitored for training, evaluation, and supervision purposes,” and that the plaintiff herself had testified that “she knew that her telephone conversations at her workstation could be monitored by supervisors.” Griffin, 74 F.3d at 827. Moreover, employees were told “that incoming emergency calls would be recorded,” and the equipment to do so was “located conspicuously in a glass case in the middle of [the plaintiff's] work area.” 74 F.3d at 827. Under this record, the court concluded that the defendant employer's “systematic monitoring of workstation telephones occurred with [the plaintiff's] consent.” 74 F.3d at 827; see also
United States v. Rittweger, 258 F.Supp.2d 345, 354 (S.D.N.Y.2003) (finding that an employee had given his implied consent to his employer's interception of his phone calls where the employer had disseminated a memo and handbooks advising employees that their calls were being recorded and were subject to review); George v. Carusone, 849 F.Supp. 159, 164 (D.Conn.1994) (finding implied consent in light of the memoranda circulated to employees informing them that their calls would be recorded and the warning labels to this effect that were affixed to many phones around the workplace).
In this case, City of Detroit employees were similarly advised, under the above-cited electronic communications policy directive signed by Defendant Kilpatrick, that they should “assume [as] a ‘rule of thumb’ that any electronic communication created, received, transmitted, or stored on the City's electronic communication system is public information, and may be read by anyone.” (Plaintiff's Response, Ex. 9, Directive for the Use of the City of Detroit's Electronic Communications System at 4.) In addition, this directive states that all such communications *365 are “the property of the City,” that they should not be “considered, in whole or in part, as private in nature regardless of the level of security on the communication,” and that, “in accordance with the applicable law governing access or disclosure, the City reserves the right to access electronic communications under certain circumstances and/or to disclose the contents of the communication without the consent of” its originator or recipient. (Id.
at 1–2.) Finally, and as noted earlier, the directive cautions employees to “bear in mind that, whenever creating and sending an electronic communication, they are almost always creating a public record which is subject to disclosure” under the Michigan FOIA, regardless of “whether the communication is routine or intended to be confidential.”
In light of this directive, a strong case can be made that City employees have given their implied consent to SkyTel's production of text messages to the City, at least under the circumstances presented here. First, SkyTel's disclosure here is for the limited purpose of enabling the City to fulfill its discovery obligations, which comports with the statements in the directive that employee communications are the property of the City and that, as such, the City reserves the right to access or disclose the contents of these communications in accordance with applicable law. Next, the Court already has explained that the text messages that are discoverable here can by no means be characterized as private or personal, but instead are confined to communications concerning official City business. Again, the directive emphasizes precisely this point, advising employees that their communications often will be deemed public records which are subject to disclosure.
To be sure, the courts have cautioned that consent under the federal Wiretap Act “is not to be cavalierly implied,” Watkins v. L.M. Berry & Co., 704 F.2d 577, 581 (11th Cir.1983), and the case law illustrates that consent may not be implied where, for example, the employer's stated policy of monitoring does not encompass the particular sort of communication at issue, see
Watkins, 704 F.2d at 581–82, or where the employer's actual practices deviate from its written policies, see
Quon, 529 F.3d at 906–07. Yet, in this case, it is important to recall exactly who
is challenging the efficacy of the City's policy directive as proof of the City's and its employees' consent to the disclosure of electronic communications. Out of the several current and former City of Detroit officials and employees who are named as Defendants in this case, only two have challenged SkyTel's retrieval and production of text messages as prohibited under the SCA: Defendant Kwame Kilpatrick, the mayor of Detroit, who signed the City's policy directive, and Defendant Christine Beatty, the mayor's chief of staff at all times relevant to this case. The remaining Defendants have not joined in the SCA-based challenge being pursued by the City and Defendants Kilpatrick and Beatty.
Whatever any given City of Detroit employee might be able to say about his or her awareness of the City's electronic communications policy or any lack of rigor or consistency in its enforcement, such arguments are singularly ineffective—and, indeed, give cause for concern—when raised by two of the City's highest-ranking officials, at least one of whom unquestionably has policymaking authority for the City and authorized the policy in question.
It is problematic, to say the least, for someone in Defendant Kilpatrick's position to attempt to deny or diminish the import of the City's electronic communications policy as it applies to him, when an important purpose of this policy is to provide notice to rank-and-file employees that their communications are subject to access and disclosure as public records and as property of the City. As Quon well illustrates, a municipal policy governing city employees may be undermined by a policymaker's or supervisor's inconsistent or contrary practice, see
Quon, 529 F.3d at 906–07, thereby impairing the city's ability to investigate employee wrongdoing.
Perhaps this is why *366 the remaining individual Defendants in this case—including the City's chief of police, Ella Bully–Cummings—have elected not to join in the SCA-based challenge mounted by the Defendant City and Defendants Beatty and Kilpatrick, where a “victory” on this issue threatens to eliminate an important tool for uncovering government corruption.
Finally, the Court returns to the premise under which it has conducted its SCA analysis—namely, that Plaintiff has sought the disclosure of SkyTel text messages via a Rule 34 request for production, as opposed to a third-party subpoena. As this premise is incorrect, the Court necessarily must address the legal significance of Plaintiff's election to proceed via the latter means of discovery. The question, in particular, is whether the Court's analysis and conclusions continue to hold true where production is sought directly from a non-party, rather than from a party that retains control over materials in the nonparty's possession.
The Court finds it best to avoid this question, and to instead insist that Plaintiff reformulate his third-party subpoena as a Rule 34 request for production directed at the Defendant City. If Plaintiff were to continue to proceed via a third-party subpoena, it seems apparent that SkyTel's compliance would qualify as “divulg[ing]” the contents of communications within the meaning of § 2702(a), and that, as Defendants have argued, this disclosure could only be made with the “lawful consent” referred to in § 2702(b)(3). Moreover, while Rule 34 and its attendant case law provide clear authority for insisting that a party consent to the disclosure of materials within its control, there is very little case law that confirms the power of a court to compel a party's consent to the disclosure of materials pursuant to a third-party subpoena.
In an effort to avoid such potentially difficult questions where a more straightforward path is readily available, the Court instructs Plaintiff to prepare and serve a Rule 34 request for production of the relevant text messages maintained by SkyTel on behalf of the Defendant City. The City shall then forward this discovery request to SkyTel, and SkyTel, in turn, shall proceed in accordance with the protocol set forth in the Court's March 20, 2008 order. By directing the parties to proceed in this manner, the Court obviates the need to determine what powers it might possess to compel a service provider such as SkyTel to comply with a third-party subpoena, and the Court leaves this question for another day. Rather, because production will be sought under Rule 34, the Court may resort to the usual mechanisms for ensuring the parties' compliance. See, e.g.,