PPG Indus., Inc. v. Jiangsu Tie Mao Glass Co., Ltd.
Decision Date | 21 July 2017 |
Docket Number | 2:15–cv–965 |
Parties | PPG INDUSTRIES, INC., Plaintiff, v. JIANGSU TIE MAO GLASS CO., LTD., et al., Defendants. |
Court | U.S. District Court — Western District of Pennsylvania |
Alexander J. Merton, Jon Corey, William A. Burck, Quinn Emanuel Urquhart & Sullivan LLP, Washington, DC, Ingrid A. Bohme, Robert M. Linn, Cohen & Grigsby, P.C., Pittsburgh, PA, for Plaintiff.
On July 24, 2015, Plaintiff PPG Industries, Inc. ("PPG") filed the instant action against Defendants Jiangsu Tie Mao Glass Co., Ltd., Benhua Wu and Mei Zhang. In connection with the case, PPG issued subpoenas to third parties Microsoft Corporation ("Microsoft"), Google, Inc. ("Google") and Yahoo! Inc. ("Yahoo"). ECF Nos. 63–1, 63–6, 63–12. Pending before the Court are PPG's Motions to Compel Microsoft, Google and Yahoo to Produce Responsive Documents Pursuant to their Subpoenas. ECF Nos. 63–2, 63–7, 63–13. For the reasons that follow, PPG's Motions are DENIED.1
On May 8, 2015, one of PPG's former employees, Thomas Rukavina was arrested and charged with theft of trade secrets. ECF No. 63–2 at 8. In early June 2015, Thomas Rukavina committed suicide while under house arrest. Id. PPG then filed this action and obtained consent for the production of all materials related to the case from Robert Rukavina, Thomas Rukavina's brother and the executor and beneficiary of his estate. Id. at 8–9, 48–50. After receiving permission from the Court to conduct limited pre-answer discovery and serve specified subpoenas, PPG served subpoenas on Microsoft, Google and Yahoo seeking e-mail communications received and sent from Thomas Rukavina's accounts with each company. Id. at 9; ECF No. 18; ECF No. 63–3 at 2; ECF No. 63–9 at 8–9; ECF No. 63–15 at 2. When Microsoft, Google and Yahoo refused to provide the requested communications, PPG filed the pending Motions.2
The resolution of this case begins and ends with the Stored Communications Act ("SCA"), which generally provides that "a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service." 18 U.S.C. § 2702(a)(1). However, under the SCA a provider "may divulge the contents of a communication" in certain circumstances, including when it has "the lawful consent of the originator or an addressee or intended recipient of such communication." § 2702(b)(3).
In this case, PPG argues that Microsoft, Google and Yahoo are required to provide the requested e-mails because PPG has served subpoenas for them and because Robert Rukavina, the executor of Thomas Rukavina's estate, has consented to their production, so (says PPG) the SCA's exception for the "lawful consent of the originator," § 2702(b)(3), applies. As part of its argument, PPG asserts that under Pennsylvania law an executor has the authority to handle a decedent's digital assets, including his electronic communications, as if she were the decedent. See, e.g., ECF No. 63–2 at 12–13. Whether or not PPG's contention about this point of Pennsylvania law is correct, however, is irrelevant to untangling the current issue before the Court. Instead, the Court concludes by examining the language of the SCA itself that production should not be compelled.
First, it is plain that the SCA does not provide an exception to its general prohibition on disclosure for civil subpoenas. Not only is such an exception not enumerated in the statute, see §§ 2702–703, but there is a seemingly settled body of decisional law that affirmatively states that civil subpoenas provide no such exception. See, e.g., Hawaii Reg'l Council of Carpenters v. Yoshimura, No. CV 16-00198 ACK-KSC, 2017 WL 738554, at *3 (D. Haw. Feb. 17, 2017) ; In re Facebook, Inc., 923 F.Supp.2d 1204, 1206 (N.D. Cal. 2012) (); Mintz v. Mark Bartelstein & Assocs., Inc., 885 F.Supp.2d 987, 991 (C.D. Cal. 2012) (); Flagg v. City of Detroit, 252 F.R.D. 346, 350 (E.D. Mich. 2008) (); In re Subpoena Duces Tecum to AOL, LLC, 550 F.Supp.2d 606, 611 (E.D. Va. 2008) (); Viacom Int'l Inc. v. Youtube Inc., 253 F.R.D. 256, 264 (S.D.N.Y. 2008) ( ).
Second, even when one of the exceptions to prohibited disclosures delineated in § 2702(b) applies, the SCA nonetheless does not require providers to disclose communications. To begin, § 2702(b) specifically states that providers "may " divulge communications if an exception applies; it does not state that they "must" do so. See § 2702(b) (emphasis added). "The word ‘may,’ when used in a statute, usually implies some degree of discretion." United States v. Rodgers, 461 U.S. 677, 706, 103 S.Ct. 2132, 76 L.Ed.2d 236 (1983). Furthermore, as Google correctly articulates in its papers, ECF No. 63–9 at 15–16, Congress knew how to draft a provision of the SCA requiring disclosure yet chose not to make disclosure mandatory in cases with lawful consent. In fact, § 2702, where the consent exception is located, is entitled "Voluntary disclosure of customer communications or records," while § 2703 is entitled "Required disclosure of customer communications or records" and details the circumstances in which providers must divulge electronic communications. See §§ 2072–703. Ultimately then, according to the language of the SCA, it is within the providers' discretion whether to disclose e-mails even in cases where there is lawful consent. See In re Facebook, Inc., 923 F.Supp.2d at 1206 () (emphasis omitted); Schweickert v. Hunts Point Ventures, Inc., No. 13-CV-675RSM, 2014 WL 6886630, at *13 (W.D. Wash. Dec. 4, 2014) () . Therefore, the Court need not decide whether Robert Rukavina's consent as executor to production of Thomas Rukavina's emails is sufficient to establish "lawful consent" under § 2702(b)(3). In any case, the Court cannot compel the production of Thomas Rukavina's emails. PPG's Motions are therefore DENIED.
Although the Court's resolution of the pending Motions ends there, the Court would make a few final observations in order to address matters raised by the parties. First, PPG could still gain access to the emails in Thomas Rukavina's Microsoft account should it choose to pursue them. Microsoft stipulated at argument and in its papers that if the Pennsylvania court with jurisdiction over Thomas Rukavina's estate concludes that Robert Rukavina's consent is "lawful consent" under § 2702(b)(3), Microsoft will voluntarily divulge the emails PPG seeks. ECF No. 63–3 at 6. This Order does not foreclose that avenue.
Second, PPG could also potentially obtain the emails in Thomas Rukavina's Yahoo and Google accounts by identifying the individual(s) who have been accessing the accounts since Thomas Rukavina's death. Both Yahoo and Google assert that Thomas Rukavina's accounts have been accessed on numerous occasions since his death and note that PPG could uncover...
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