Theofel v. Farey-Jones, 341 F.3d 978 (9th Cir. 2003)

Douglas Wolf and Richard Buckingham, officers of Integrated Capital Associates, Inc. (ICA), were embroiled in commercial litigation against Alwyn Farey-Jones when Farey-Jones’s lawyer, Iryna Kwasny, subpoenaed ICA’s Internet Service Provider, NetGate, broadly seeking “all copies of emails sent or received by anyone.” NetGate, which was not represented by counsel, responded that the amount of e-mail covered by the subpoena was substantial, but Farey-Jones refused to limit its scope. NetGate proceeded to post 339 “sample” e-mail messages from the ICA parties on a website for Farey-Jones and Kwasny to review. The ICA parties were not notified of the disclosure of their e-mail messages, most of which were unrelated to the litigation and many of which were privileged and personal. When the ICA parties found out what had occurred, they immediately asked the court to quash the subpoena, which the court did, and they were awarded over $9,000 in sanctions to cover their attorney’s fees. The ICA parties then filed a civil suit against Farey-Jones and Kwasny, alleging violation of the Stored Communications Act, the Wiretap Act, the Computer Fraud and Abuse Act and various state laws. The district court held that none of the federal statutes applied and dismissed the state-law claims. The Ninth Circuit reversed in part the judgment of the district court, holding that the ICA parties had claims against Farey-Jones and Kwasny under the Stored Communications Act (because the subpoena was “patently unlawful”) and the Computer Fraud and Abuse Act (because the statute does not require a party’s ownership or control over a computer that has been accessed without authorization).