LAN LI, et al., Plaintiffs, v. JOSEPH WALSH, et al., Defendants Case No. 16-cv-81871-MARRA/MATTHEWMAN United States District Court, S.D. Florida Entered on FLSD Docket May 19, 2023 Matthewman, William, United States Magistrate Judge ORDER GRANTING IN PART AND DENYING IN PART THE 17 PLAINTIFFS’ MOTION TO COMPEL SUBPOENA COMPLIANCE FROM NON-PARTY YAHOO INC. OR, IN THE ALTERNATIVE, CONFIRM CONSENT OF DEFENDANT PAYNE [DE 934] *1 THIS CAUSE is before the Court upon: (1) the 17 Plaintiffs’ Motion to Compel Subpoena Compliance from Non-Party Yahoo Inc. or, in the Alternative, Confirm Consent of Defendant Payne (“Motion to Compel”) [DE 934];[1] (2) Non-Party Yahoo Inc.’s (“Yahoo”) Opposition [DE 940]; and (3) the 17 Plaintiffs’ Reply [DE 941]. The Court held a hearing on the 17 Plaintiffs’ Motion to Compel via Zoom video teleconference (VTC) on May 17, 2023. The hearing was attended by counsel for the 17 Plaintiffs, counsel for Yahoo, and the pro se Defendant J. Marcus Payne. I. BACKGROUND On March 27, 2023, the Court granted the 17 Plaintiffs’ Motion to Reopen Discovery. [DE 932]. Specifically—noting that the 17 Plaintiffs sought to reopen discovery to obtain bank records, tax returns, and email records from third parties—the Court found that such third-party discovery was “not burdensome on Defendant Payne.” [DE 932 at 1]. The Court also found that the requested third-party discovery “may contain relevant information relating to the merits of th[e] case and therefore could assist the trier of fact coming to a proper resolution of the case on the merits.” Id. And, the Court found that there would not be any prejudice to Defendant Payne in allowing discovery from third parties. Id. Consequently, pursuant to the Court's March 27, 2023 Order [DE 932], the 17 Plaintiffs issued a subpoena duces tecum to Yahoo Inc., seeking “[a]ll emails for the account *********@yahoo.com from 1/1/2010 to the present.” [DE 934-1 at 2]. II. MOTION, RESPONSE, AND REPLY A. The 17 Plaintiffs’ Motion [DE 934] In the 17 Plaintiffs’ Motion to Compel Subpoena Compliance from Non-Party Yahoo Inc. or in the Alternative, Confirm Consent of Defendant Payne [DE 934], the 17 Plaintiffs note that “[o]n April 12, 2023 and April 13, 2023, respectively, [they] properly issued and served a Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises In a Civil Action upon Yahoo Inc.....” [DE 934 at 2]. However, in response to the 17 Plaintiffs’ subpoena duces tecum, Yahoo Inc. (“Yahoo”) stated in pertinent part as follows: The Stored Communications Act (“SCA”), 18 U.S.C. § 2701, et seq., prohibits Yahoo from disclosing certain information you seek. Specifically, the SCA prohibits Yahoo from disclosing “contents” of electronic communications, unless one of the specifically enumerated exceptions to the prohibition is satisfied. None of these exceptions provide a basis for disclosure in response to a subpoena issued by a civil litigant (or other non-governmental entity). [DE 934 at 2]. The 17 Plaintiffs now contend that Yahoo's grounds for not complying with the subpoena are “not well-taken.” Id. at 3. Specifically, after explaining the subpoena's compliance with Rule 45 of the Federal Rules of Civil Procedure, the 17 Plaintiffs note that Defendant Payne did not assert any privileges or objections to the subpoena. Id. The 17 Plaintiffs thus contend that “Payne's failure to object must be regarded as his consent to release the emails Plaintiffs seek from Yahoo.” Id. *2 Moreover, as to the propriety of the subpoena, the 17 Plaintiffs claim Defendant Payne's email correspondence is “crucial for Plaintiffs to ascertain the nature and extent of Payne's collaboration with Walsh and other malicious actors during their plan's execution, all of which would be evidenced in the emails to be subpoenaed.” Id. at 4. Accordingly, “[s]ince no documents whatsoever were produced by Payne,” and because the Court's March 27, 2023 Order “limits discovery to third parties, Plaintiffs [assert they] now have to rely on getting Payne's emails” in another fashion. Id. B. Yahoo's Opposition [DE 940] Simply stated, Yahoo's argument is that “[t]his Court does not have the authority under the SCA to force Yahoo to violate federal law. Courts interpreting the SCA repeatedly have found that only the actual, lawful consent of the user is enough to allow providers like Yahoo to disclose email contents under the SCA.” [DE 940 at 2]. Thus, “[b]ecause Payne has not given actual lawful consent to the disclosure of its contents, [Yahoo maintains] the SCA bars Yahoo from disclosing those contents to the Plaintiffs.” Id. In this regard, it is Yahoo's position that “lawful consent” under the SCA “cannot be assumed by inaction in response to discovery requests or even the refusal to comply with discovery.” Id. at 3–4. C. The 17 Plaintiffs’ Reply [DE 941] In reply, the 17 Plaintiffs argue that “Payne has implicitly consented to disclosure by having control over the emails and failing to produce them when these emails were directly subpoenaed by Plaintiffs in 2021.” [DE 941 at 2]. Further, the 17 Plaintiffs contend that, because Defendant Payne admitted in a deposition to destroying his computer and deleting his emails, they “were deprived of the opportunity to obtain production under Rule 34 of the Federal Rules of Civil Procedure.” Id. Therefore, according to the 17 Plaintiffs, “[i]t is only due to the Defendant's professed lack of documentation in his possession that Plaintiffs have not been able to gather additional material regarding Defendant to support the claims included in their Motion for Summary Judgment,” and the Court should “issue an order to produce the records sought ... or, in the alternative, issue a ruling that Defendant has consented to Yahoo producing these documents.” Id. at 2–3. D. The May 17, 2023 Hearing Counsel for the 17 Plaintiffs, counsel for Yahoo, and Defendant J. Marcus Payne were present at the May 17, 2023 Zoom VTC hearing. [DE 945]. At the hearing, the Court heard from counsel for the 17 Plaintiffs, counsel for Yahoo, and Defendant Payne. Specifically, Defendant Payne argued that the 17 Plaintiffs were on a fishing expedition and that he had in fact primarily used an AOL email address during the relevant time period surrounding this litigation. In this regard, Defendant Payne argued that—approximately six years ago—he had been “interrogated” by the U.S. Securities and Exchange Commission (“SEC”) concerning the production of his AOL emails. Moreover, with respect to his Yahoo email address, Defendant Payne stated that to the best of his knowledge he did not use the account to communicate concerning this case (although he may have used it because Yahoo “works better” in other countries). And, when questioned concerning the temporal scope of the Yahoo subpoena, Defendant Payne maintained that he did not communicate with the other defendants in this case until 2012, and that he stopped communicating with them in 2016. III. ANALYSIS & RULING Under the Stored Communications Act, 18 U.S.C. § 2701, et seq., “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,” absent certain exceptions. 18 U.S.C. § 2702(a). And, for purposes of the instant case, one of these exceptions includes “the lawful consent of the originator or an addressee or intended recipient of such communication.” 18 U.S.C. § 2702(b)(3). *3 Here, during the May 17, 2023 Zoom VTC hearing, to the extent that Yahoo objected based on a lack of Defendant Payne's consent, and to the extent the 17 Plaintiffs argued that Defendant Payne's consent could be implied under the circumstances, the Court did not reach either matter because Defendant Payne explicitly stated his intent to consent to disclosure of emails from both his Yahoo and AOL email addresses.[2] Therefore, with Defendant Payne's consent to producing both his Yahoo and AOL emails in mind, the Court simply turned to an examination of the scope of the Yahoo subpoena and—after hearing from Defendant Payne—determined that email production for the period of January 1, 2012, through December 31, 2016 was appropriate, as this time period represents a proper balance of relevancy and proportionality under Federal Rule of Civil Procedure 26(b)(1). The Court also made additional rulings with respect to Defendant Payne's AOL emails, which are memorialized below. IV. CONCLUSION Based on the foregoing, it is hereby ORDERED that the 17 Plaintiffs’ Motion to Compel Subpoena Compliance from Non-Party Yahoo Inc. or, in the Alternative, Confirm Consent of Defendant Payne [DE 934] is GRANTED IN PART AND DENIED IN PART. Specifically: The 17 Plaintiffs’ Motion is DENIED to the extent that the 17 Plaintiffs request that the Court enter an order requiring Yahoo to produce the records sought without Defendant Payne's consent, or that the Court enter an order finding that Defendant Payne has impliedly consented to Yahoo's production of his emails. The issue of implied consent under the SCA is a thorny one and the Court need not address it for purposes of resolving the present Motion in light of Defendant Payne's agreement to sign a Yahoo and AOL release authorization form for the emails to be produced for the time period as limited by the Court and pursuant to the protections imposed by the Court. However, the 17 Plaintiffs’ Motion is GRANTED to the extent that the 17 Plaintiffs seek production of certain of Defendant Payne's emails (which the 17 Plaintiffs explained at the hearing also included his AOL emails) for a more limited time period and under the protections imposed by the Court. In this regard, with respect to the Yahoo emails and the AOL emails, because Defendant Payne has consented to production of his Yahoo emails and AOL emails from January 1, 2012 through December 31, 2016, counsel for Yahoo shall email an authorization form (or forms) to Defendant Payne (with a copy to the 17 Plaintiffs’ counsel), after which Defendant Payne shall then sign the form(s) and return the form(s) via email to counsel for Yahoo (with a copy sent to the 17 Plaintiffs’ counsel). This procedure was agreed to by all in attendance at the hearing. With respect to the AOL emails previously sent by Defendant Payne to the SEC, Defendant Payne shall use a diligent search and inquiry to attempt to locate the AOL emails he previously submitted to the SEC. Moreover, he and the 17 Plaintiffs’ counsel shall contact the SEC to see if Defendant Payne can obtain a copy of those emails should Defendant Payne be unable to locate them in his own files. To this end, the Court will also allow the 17 Plaintiffs’ counsel to contact the SEC to see if the SEC will produce Defendant Payne's previously submitted AOL emails in response to a subpoena or consent form signed by Payne. If the SEC requires that Defendant Payne consent to disclosure, in light of Defendant Payne's assertion that he would not have any problem consenting to such disclosure, the Court will require Defendant Payne to sign any form that the SEC requires so that the 17 Plaintiffs may ultimately obtain a copy of the previously produced AOL emails. While it is likely that the AOL emails previously submitted by Payne to the SEC will be subsumed within the production of Payne's AOL emails by Yahoo, this is not a certainty and therefore the Court is requiring both procedures to attempt to obtain the AOL emails from both the SEC and from Yahoo to ensure complete production and put this discovery dispute to rest. This procedure was also agreed to by all in attendance at the hearing. Once Defendant Payne has provided the requisite authorization form(s) to Yahoo, Yahoo shall then submit Defendant Payne's emails from his Yahoo email address for the period of January 1, 2012 through December 31, 2016, to Matthewman@flsd.uscourts.gov for in camera review. Yahoo shall also submit Defendant Payne's emails from his AOL email address for the period of January 1, 2012 through December 31, 2016, to Matthewman@flsd.uscourts.gov for in camera review.[3] After the Court sees how voluminous or sparse the email production is, the Court will issue a further Order. On or before May 30, 2023, Defendant Payne, counsel for the 17 Plaintiffs, and counsel for Yahoo shall file a Joint Notice, apprising the Court of the status of Defendant Payne's email production. By that date, the Court is expecting that Defendant Payne will have signed all necessary authorization forms and that Yahoo will have electronically submitted Defendant Payne's emails to Chambers for in camera review with respect to both his Yahoo and AOL email addresses. DONE and ORDERED in Chambers at West Palm Beach, Palm Beach County, Florida, this 19th day of May, 2023. Footnotes [1] The 17 Plaintiffs are Baoping Liu, Changyue Liu, Daqin Weng, Feng Guo, Li Zhang, Ling Li, Liyan Feng, Min Cui, Qingyun Yu, Shaoping Huang, Shaoqing Zeng, Tingting Sun, Tonghui Luan, Xiao Sun, Yawen Li, Yi Zhao, and Zheng Yu. [2] Counsel for Yahoo stated that Yahoo had acquired AOL and that Yahoo could therefore also produce Defendant Payne's AOL emails which were the subject of a separate subpoena issued by counsel for the 17 Plaintiffs, due to Defendant Payne's consent to production. [3] The parties and counsel for Yahoo are aware of Payne's Yahoo and AOL email addresses and therefore it is unnecessary to cite them here.