On November 4, 2009, Plaintiffs filed their response to Ms. Barrera’s motion.[1] (Dkt. No. 144). Plaintiffs assert that Ms. Barrera’s arguments regarding the AOL subpoena are moot because AOL has indicated that it will not produce the requested documents pursuant either to the subpoena or a court order. (See id. at ¶ 18). Plaintiffs further argue that Ms. Barrera (1) has not shown the Court why sanctions are appropriate—assuming their subpoena is defective; and (2) has failed to demonstrate under Federal Rule of Civil Procedure 26(b)(2)(B)why Plaintiffs should bear the costs of the related discovery. (Id. at ¶¶ 20-21). Finally, Plaintiffs ask the Court to compel Ms. Barrera’s counsel to [at least] review his client’s emails before asserting any related privileges and to compel Ms. Barrera to produce the emails that are in her possession. (See id. at ¶ 32). In the alternative, if the Court determines that there are still unproduced emails in the possession of Webb County, Plaintiffs request the Court to compel production. (Id. At ¶ 37). Soon thereafter, on November 9, 2009, Webb County (and Ms. Barrera in her official capacity) filed its response to Plaintiffs' motion to compel. (Dkt. No. 145).

I. The AOL Subpoena.

In her motion, Ms. Barrera argues that Plaintiffs' subpoena is void under Federal Rule of Civil Procedure 45(a)(2)(c). (See Dkt. No. 140 at pgs. 3-4). Ms. Barrera also generally refers to AOL’s policy regarding civil subpoenas and various federal district court cases concerning the Electronic Communications Privacy Act (“the Privacy Act”) in support of her request for a protective order and for the quashing of Plaintiffs' subpoena. (See id. at pg. 6).

*2 Under Federal Rule of Civil Procedure 45(a)(2)(C), a subpoena for production must issue from the court for the district where the production is to be made. Fed. R. Civ. P. 45(a)(2)(C). Here, Plaintiffs issued the AOL subpoena from the Southern District of Texas. (Dkt. No. 140 at Ex. 2). In their subpoena, Plaintiffs directed AOL to deliver the requested emails to Plaintiffs' counsel’s office in San Antonio, Texas, which is in the Western District of Texas. (Id.). As such, the Southern District of Texas is not the proper district for the issuance of this subpoena, and therefore, the Plaintiffs' subpoena is defective. See Fed. R. Civ. P. 45(a)(2)(C).

Moreover, Plaintiffs' subpoena is problematic when considering “the Privacy Act,” codified as 18 U.S.C. § 2701 et seq. Section 2702 of the Privacy Act prohibits a person or entity that provides either an electronic communication service or a remote computing service to the public from knowingly divulging to any person or entity the contents of any communication while in electronic storage by that service or any communication which is carried or maintained by that service. 18 U.S.C.A. § 2702(a) (Westlaw 2009). Section 2701 of the Privacy Act even sets forth a punishable offense for intentionally accessing without or exceeding authorization and obtaining an electronic communication stored at an electronic communication facility. In re Subpoena Duces Tecum to AOL, LLC, 550 F.Supp.2d 606, 609 (E.D. Va. 2008); 18 U.S.C.A. § 2701(a) (Westlaw 2009). More importantly, this Court [as well as other federal district courts] notes that the statutory language of the Privacy Act does not include an exception for the disclosure of electronic communications pursuant to civil discovery subpoenas. See In re Subpoena Duces Tecum to AOL, LLC, 550 F.Supp.2d at 611; see also Flagg v. City of Detroit, 252 F.R.D. 346, 350 (E.D. Mich. 2008)(noting that the Privacy Act “lacks any language that explicitly authorizes a service provider to divulge the contents of a communication pursuant to a subpoena or court order”); Viacom Intern. Inc. v. Youtube Inc., 253 F.R.D. 256, 264 (S.D.N.Y. 2008) (finding that Section 2702 of the Privacy Act contains no exception for disclosure of electronic communications by remote computing services pursuant to civil discovery subpoenas). As such, the Court finds that Plaintiffs' subpoena is defective and that it be inappropriate to require AOL to produce Ms. Barrera’s emails to Plaintiffs.[2] See id.

II. Ms. Barrera’s Request for Sanctions.

Ms. Barrera also moves for sanctions against Plaintiffs and their counsel for issuing an allegedly void subpoena and refusing to withdraw it. (Dkt. No. 140 at pgs. 5-6). Plaintiffs, however, argue that Ms. Barrera’s request should be denied as moot because AOL has indicated that it will not comply with even a valid subpoena or court order. (Dkt. No. 144 at ¶ 18).

As discussed above, Plaintiffs' subpoena to AOL was issued out of the Southern District of Texas, rather than the Western District, in violation of Fed. R. Civ. P. 45(a)(2)(C). However, Ms. Barrera fails to provide any authority in support of her contention that sanctions are warranted against Plaintiffs for what one court has described as a “relatively modest procedural defect.” Insinga v. DaimlerChyrsler Corp., 2008 WL 202701, at *1-2 (N.D.N.Y. January 23, 2008) (noting that the defendant’s failure to comply with Rule 45(a)(2)(C) may provide a technical basis for denying defendant’s motion to compel where the defendant’s counsel issued a subpoena from the Northern District of New York requesting that documents be produced to the offices of the defendant’s counsel, located within the Western District of New York); see also Southeastern Mech. Servs., Inc., 2009 WL 3095642, at *12 (N.D. Ga. June 22, 2009) (explaining that Rule 45 does not provide for sanctions for the failure to comply with the procedural requirements for serving a subpoena). Finally, Ms. Barrera cites no case law that would warrant imposing sanctions against a party that has issued a subpoena that is contradictory to the Privacy Act.

*3 In her motion, Ms. Barrera does cite Federal Rule of Civil Procedure 37 as authority for the Court to issue sanctions in this case. (Dkt. No. 140 at pg. 2). However, Rule 37 does not appear to address the specific relief Ms. Barrera seeks. See Smith v. Jacobs Engineering Group, Inc., 2008 WL 4264718, at *3 (N.D. Fla. March 20, 2008) (stating that “Rule 37 is not a basis for sanctions for failure to comply with the Rule 45 subpoena”). Rule 37 provides for the issuance of sanctions in connection with motions to compel, and makes no mention of motions to quash civil discovery subpoenas. Under Rule 37(a)(5), the Court must impose sanctions in the form of costs and attorneys fees if a motion to compel is denied and a protective order is issued. See Fed. R. Civ. P. 37(a)(5)(B). As stated above, the Court will address Plaintiffs' motion to compel discovery from Ms. Barrera at a later date. At this time, the Court only grants Ms. Barrera’s request for a protective order to the extent that she seeks to quash Plaintiffs' subpoena to AOL. Accordingly, the Court does not find sufficient grounds for imposing sanctions against Plaintiffs and their counsel.

III. Other Matters Before the Court.

Ms. Barrera requests in the instant motion that the Court enter a protective order that not only quashes Plaintiffs' subpoena, but also prohibits Ms. Barrera’s personal emails from being accessed or further sought from Ms. Barrera. (Dkt. No. 140 at pg. 1). However, the authority cited by Ms. Barrera in support of her motion to quash is addressed solely to the question of whether a party may obtain electronic communications by subpoenaing a third-party internet services provider. (See id. at pg. 3). As such, the Court’s decision here to quash Plaintiffs' subpoena applies only to Plaintiffs' request to directly obtain Ms. Barrera’s personal emails from AOL. The Court will address the issue of whether Plaintiffs may obtain the emails requested from AOL through Ms. Barrera in its forthcoming order on Plaintiffs' motion to compel discovery from Ms. Barrera.

Additionally, Ms. Barrera requests that the Court order Plaintiffs and their counsel to pay costs for the delivery of the emails and to compensate Ms. Barrera’s counsel for his time spent reviewing the emails, should the Court enforce Plaintiffs' subpoena. (See Dkt. No. 140 at pg. 7). However, as explained above, the Court grants Ms. Barrera’s instant request to quash Plaintiffs' subpoena to AOL. Therefore, the Court need not address Ms. Barrera’s alternate request for relief at this time.[3]

Finally, Plaintiffs ask the Court to compel Ms. Barrera’s counsel to [at least] review his client’s emails before asserting any related privileges and to compel Ms. Barrera to produce the emails that are in her possession. (See Dkt. No. 144 at ¶ 32). And, in the alternative, if the Court determines that there are still unproduced emails in the possession of Webb County, Plaintiffs request the Court to compel production. (Id.at ¶ 37). The Court will address these issues along with Plaintiffs' motion to compel discovery responses from Ms. Barrera (Dkt. No. 112) on December 3, 2009 at 3:00 p.m.—the next court setting in this case.

As such, for the reasons discussed above, “Defendant, Patricia A. Barrera’s Opposed (Individual Capacity) Motion to Quash Subpoena For Protective Order, And For Sanctions” (Dkt. No. 140) is GRANTED IN PART insofar as Ms. Barrera seeks to quash Plaintiffs' subpoena to AOL. The instant motion (Dkt. No. 140) is DENIED IN PART insofar as Ms. Barrera requests the Court to impose sanctions against Plaintiffs and their counsel. Finally, the Court will address all other outstanding matters at the December 3rd hearing.

IT IS SO ORDERED.

Done this 25th day of November, 2009, at Laredo, Texas.

On September 2, 2009, Plaintiffs filed their motion to compel discovery responses from Ms. Barrera. (Dkt. No. 112). On September 25, 2009, Plaintiffs filed their supplement to their motion to compel. (Dkt. No. 122). In their motion and supplement, Plaintiffs ask the Court to compel Ms. Barrera to produce all emails in her possession or control concerning each Plaintiff. (See Dkt. No. 112 at ¶ 12 and Dkt. No. 122 at ¶ 11). This matter is still outstanding before the Court. As such, the Court does not construe the motion to compel included in Plaintiffs response as a new motion. The Court will address Plaintiffs' motion to compel discovery from Ms. Barrera separately in a forthcoming order.

The Court will address the issue of whether Plaintiffs may order Ms. Barrera to authorize the production of the emails from AOL to Ms. Barrera pursuant to a Rule 34 request for production in a separate order. See Flagg v. City of Detroit, 252 F.R.D. 346, 358 (E.D. Mich. 2008).

As noted above, the Court has yet to rule on Plaintiffs' request for production of the emails from Ms. Barrera, included in Plaintiffs' motion to compel discovery from Ms. Barrera.