George Theofel v. Alwyn Farey-Jones

Officers of Integrated Capital Associates, Inc. (ICA) were involved in a litigation against Alwyn Farey-Jones (defendant). During discovery, Farey-Jones told his lawyer Iryna Kwasny (defendant) to subpoena ICA’s Internet service provider (ISP) NetGate for all copies of emails sent or received by anyone at ICA. Farey-Jones and Kwasny refused to limit the subpoena’s scope even after NetGate described the substantial volume the subpoena covered. NetGate posted to a NetGate website a sample of 339 messages, most of which were unrelated to the litigation, and many of which were privileged or personal. Farey-Jones and Kwasny read the emails. The magistrate judge granted the ICA officers’ motion to quash the subpoena and imposed sanctions. George Theofel and other ICA employees whose emails were included in the sample (collectively, ICA employees) (plaintiffs) sued Farey-Jones and Kwasny for violating the Stored Communications Act (SCA). The district court dismissed the claim, holding that email messages that remained on an ISP’s server after delivery were not in electronic storage and therefore fell outside the SCA’s coverage. The ICA employees appealed. Farey-Jones, Kwasny, and the United States, as amicus curiae, argued that electronic storage applied only to backup copies of messages that were in temporary intermediate storage prior to transmission and not to post-transmission messages.