1. The named parties in this action conferred, and determined that because the dispute centers upon an allegation that Defendant improperly forwarded certain emails from a work email account to her personal email account, copies of Defendant's personal emails would be obtained via Subpoenas Duces Tecum from her personal email service providers. As the Court was not involved in this “meet and confer,” it is not clear why a search of the Plaintiff's email servers would not suffice to determine when emails were sent from Defendant's work account, but trusts that counsel have made an appropriate decision about the most efficient way to get information to resolve the claims about Defendant's actions.

2. On March 30, 2012, a Subpoena Duces Tecum was served upon Google, Inc., for production of emails stored in Defendant's gmail account, which was described in particularity, along with dates covered by the request, and instructions for Google to send the information to Defendant's counsel. The parties have agreed that Defendant's counsel would make the first review of the emails, and then redact any privileged or confidential information, and then produce the emails with a privilege log of any material withheld. The Subpoena Duces Tecum provided that the emails be produced to Defense counsel by April 16, 2012.

3. On April 2, 2012, Google responded to the Subpoena Duces Tecum with a letter to Defendant's counsel from Ted Charlton, outlining potential boilerplate objections [such as overbreath, burdensomeness, confidentiality, trade secret, or the need for a protective order covering the material to be produced], and indicating that it would provide the email subscriber, who in this case is the Defendant, an opportunity to April 22, 2012, to quash the subpoena. This was silly, because the Subpoena was issued on behalf of Defendant. It was unlikely that she would then move to quash her own subpoena. But giving Google the benefit of the doubt, and recognizing that it needs a bureaucratic, automated method to respond to the numerous types and requests for production it presumably receives, the loss of six days in the discovery process is hardly worth sanctions or a finding of contempt.

4. Google gave notice to the account-holder, the Defendant, of receipt of her subpoena, and of her ability to move to quash it. After Google's self-imposed deadline for notice of a Motion to Quash passed, it did not produce any documents pursuant to the Subpoena. The parties have now lost more than six days in the discovery process attempting to resolve production of these emails. At least Google provided the name and email address of an actual person to contact; Defendant's counsel persevered in the quest for these emails.

*2 5. On May 7, 2012, counsel contacted Mr. Charlton, of Google's Legal Investigation Support Department, and continued efforts to resolve or narrow this dispute by providing a copy of the Protective Order governing discovery materials that was issued in this case (one of Google's conditions precedent to production of material). By return email, Google provided a list of conditions it demanded be met prior to production of the discovery material sought. It cited a 2008 case, statutes, and potential privacy interests of the account holder as the basis of its conclusion that it could not respond to “merely” a Subpoena Duces Tecum, but required the further step of a direct Order from the Court where the action was filed. It then requires, within 10 days of the Order, a direct request from the account holder for production of the material. Google also requested an opportunity to see any proposed order in advance of its submission by counsel for Defendant, so that it might discuss the terms.

6. On May 16, 2012, counsel for Defendant sent Carleton a letter disagreeing with Google's analysis of the case law and statutes cited by Google as the reasons it could not comply with a subpoena duces tecum.Counsel for Defendant noted that failure to produce the material requested by May 23, 2012, would result in the appropriate motions pursuant to Fed. R. Civ. P. 45.

7. Google has not produced the material sought in the subpoena duces tecum. Defendant's Motion to Compel (Clerk's No. #23) was served upon Google, in addition to service on counsel for Plaintiff. No one has responded to the Motion to Compel. Defendant seeks sanctions, including expenses, fees, and any other relief authorized by Fed. R. Civ. P. 45.

8. The Court has reviewed the motion, attachments, subpoena duces tecum, and authorities cited. Based upon this review, the Court FINDS that the material sought is not overbroad, vague, burdensome, harassing, unlimited in time or scope, in violation of any applicable statutory, common law or other privilege, immunity, or restriction on discovery; it is not designed to disclose any trade secret (belonging to Google or any party). It does not require Google to violate any of the provisions of the Stored Wire and Electronic Communications and Transactional Records Access Act, 18 U.S.C. § 2701, et seq. The subpoena duces tecum was issued by this Court, and was in proper form pursuant to Fed. R. Civ. P. 45 for production of documents in this District. Google's demand for an Order in addition to the subpoena, is at best, “belts and suspenders,” to insulate it from any possible claim that it unlawfully disclosed information. It did offer to continue the dialog on the terms of this order, in its communication of May 7, 2012. But it shouldn't be this hard, or this convoluted of a process to respond to a simple request. Understandably, Defendant's counsel was frustrated, and turned instead to the Court for relief and enforcement of the Subpoena.

9. I expect all counsel to be familiar with, and adhere to the Sedona Conference Cooperation Proclamation.[1] It gives guidance in instances where Protective Orders relating to the scope of discovery may be required, along with information about methods of production that may save all parties time and money. Rather than requiring another “meet and confer” between counsel and Google's representative, I will just cut to the chase and issue the Order that Google maintains it needs so as to expedite discovery in this case. (Note to Google: if you are going to require this step before responding to valid subpoenas, kindly provide a form order, relevant citations, and read 18 U.S.C. § 2702(b)(1), which does allow the disclosure of the electronically stored communication to “the addressee or intended recipient of such communication, or the agent of such addressee or intended recipient.”). In this case, it is alleged that the addressee and intended recipient of discrete, clearly identified, and limited number of emails is the Defendant. The emails are to be produced to her attorney. There is a Protective Order in place in this case guarding against further dissemination. This is not an instance where a third-party is randomly rummaging through Defendant's emails, or some other person's emails. Thus, an elaborate review process such as outlined in Flagg v. City of Detroit, 252 FRD 346 (E. D. Mich. 2008) is not warranted. It is unclear why Google takes the position that a validly issued Subpoena is not the equivalent of a validly issued Order, other than an Order provides judicial review as to scope of discovery, while a subpoena is crafted solely by counsel. So, I will issue the Order. If Google has other concerns it wanted addressed, it should have filed a Motion to Quash, responded to the Motion to Compel, provided a proposed Order, or in some other way continued the iterative process with counsel for Defendant.

*3 10. To foster cooperation and continued dialog with those involved, Defendant's motion for a finding of contempt or sanctions is denied at this time. The third-party was entitled to seek reasonable steps to avoid undue burden or expense. Google, Inc., is put on notice that it may not simply ignore a valid subpoena duces tecum, and subsequent motion to compel, and expect that the Court will kindly keep the “meet and confer” process open any longer. It has waived any objections to the subpoena duces tecumby failing to timely file a Motion to Quash pursuant to Fed. R. Civ. P. 45(c). It has not moved for a Protective Order pursuant to Fed. R. Civ. P. 26(c) or 45(c). The Court has taken the extraordinary step of analyzing the arguments and positions taken during the “meet and confer” process with Defendant's counsel, addressing those concerns, and now issuing a direct Order for production of the material sought in order to move the discovery process along, and not waste further resources.

11. It is hereby ORDERED that by July 23, 2012, Google, Inc., shall comply with the subpoena duces tecum as served upon it March 30, 2012. Failure to do so will result in sanctions pursuant to Fed. R. Civ. P. 45.

The Clerk shall send a copy of this Order to Ted Charleton, Google, Inc.; Google Legal Support, 1600 Amphitheater Parkway Mountain View, CA 94043, email: google-legal-support@google.com.