Theofel vs. Farey-Jones Decision Written by Judge Alex Kozinski

Theofel vs. Farey-Jones Decision (Kozinsky Decision)

Here are the details of the case.

One of the most confusing parts of this is keeping the players straight, so I'm listing them for you here with brief descriptions, so it will be easier to reference the list as you're reading, if necessary.

Theofel - An executive of ICA (Integrated Capital Associates, Inc.), the plaintiff.

ICA - The company whose ISP was served with the subpoena.

Farey-Jones - The defendant in the case. The person whose lawyers served ICA's ISP (Netgate) with the subpoena.

Kwasny - The lawyer for Farey-Jones who served NetGate with the subpoena for ICA's emails.

Wolf and Buckingham - Lawyers for the plaintiff (Theofel - ICA) who sued, along with Theofel over the improper subpoenas.

Theofel is suing Farey-Jones. Farey-Jones subpoenaed Theofel's corporations ISP (Netgate) in order to gain access to its emails. According to the decision, Farey-Jones' counsel (Iryna Kwasny) should have taken "reasonable steps to avoid imposing undue burden or expense" on NetGate, by requesting "only e-mail related to the subject matter of the litigation, or maybe messages sent during some relevant time period, or at the very least those sent to or from employees in some way connected to the litigation." However, this was not the case. Kwasny ordered production of "all copies of e-mails sent or received by anyone" at Theofel's company, ICA (Integrated Capital Associates, Inc.), with no limitation as to time or scope.

NetGate, who was not represented by a lawyer, responded to Kwasny, and informed her that the amount of email requested was substantial, but Kwasny "did not relent." In an attempt to satisfy the request, NetGate took what Kozinski describes in the opinion as a "Baskin-Robbins approach to subpoena compliance," offering a "free sample" of 339 messages. Netgate posted the messages to a website where they were read by Kwasny and Farey-Jones. Kwasny did not notify Thoefel or anyone else at ICA or ICA's counsel that any of this had taken place. As it turns out, most of the sampled emails were privileged or personal and unrelated to the litigation.

When ICA's lawyers (Wolf and Buckingham) discovered on their own that this had all taken place, they moved to quash the subpoena and award sanctions. Magistrate Judge Wayne Brazil "soundly roasted" Farey-Jones and Kwasny for their conduct, finding that "the subpoena, on its face, was massively overbroad" and "patently unlawful." Brazil also ruled that Farey-Jones and Kwasny had "transparently and egregiously violated the Federal Rules, "acted in bad faith," and showed "at least gross negligence in the crafting of the subpoena."

Brazil not only granted the motion to quash, but he penalized Farey-Jones and Kwasny with over $9,000 in sanctions to cover Wolf and Buckingham's legal fees.

Meanwhile, Wolf and Buckingham and other ICA employees whose email was included in the sample filed a civil suit against Farey-Jones and Kwasny on the grounds that they had violated the Stored Communications Act, the Wiretap Act, and the Computer Fraud and Abuse Act, as well as various California State Laws. Farey-Jones and Kwasny claimed that none of these acts had been violated because NetGate willingly provided access to the emails, and that consent was not coerced because the subpoena itself informed NetGate of its right to object. However, ICA and Wolf and Buckingham contended that if the subpoena itself was "patently unlawful," that it stands to reason that the authorization was also invalid.

Although a party cannot be considered trespassing if his entry is authorized, Kozinski likened the situation to "the busybody who gets permission to come inside by posing as a meter reader," which is clearly trespassing.

I'll let the decision speak for itself at this point:

From page 3 of the Kozinsky decision:

"NetGate disclosed the sample in response to defendants' purported subpoena. Unbeknownst to NetGate, that the subpoena was invalid. This mistake went to the essential nature of the invasion of privacy. The subpoena's falsity transformed the access from a bona fide state-sanctioned inspection into private snooping."

"Defendants had at least constructive knowledge of the subpoena's invalidity. It was not merely technically deficient, nor a borderline case over which reasonable legal minds might disagree. It "transparently and egregiously" violated Federal Rules, and defendants acted in bad faith and with gross negligence in drafting and deploying it."

"The subpoena power is a substantial delegation of authority to private parties, and those who invoke it have a grave responsibility to ensure that it is not abused. Informing the person served of his right to object is a good start, see Fed.R.Civ.P. 45(a)(1)(D), but it is no substitute for the exercise of independent judgment about the subpoena's reasonableness. Fighting a subpoena in court is not cheap, and many may be cowed into compliance with even overbroad subpoenas, especially if they are not represented by counsel or have no personal interest at stake."