Previously Opened Emails Stored for Less than 181 Days in Web-Based Account May be Obtained by Trial Subpoena
U.S. v. Weaver, 2009 WL 2163478 (C.D. Ill. July 15, 2009) (Not Reported)
In this case, the Government sought to discover the contents of defendant’s email sent or received at a Microsoft/MSN Hotmail account. Accordingly, the Government executed a trial subpoena seeking production of “‘the contents of electronic communications (not in ‘electronic storage’ as defined by 18 U.S.C. § 2510(7)’ and specified that the ‘[c]ontents of communications not in ‘electronic storage’ include the contents of previously opened or sent mail.’” Microsoft declined to produce the content of previously accessed, viewed, or downloaded emails that had been stored for fewer than 181 days citing precedent from the Ninth Circuit Court of Appeals that such production would require a warrant. Because Microsoft is located within the Ninth Circuit, it felt it must comply. The Government sought to compel production.