Federal Law & Legal System – Page 171 – Marquette University Law School Faculty Blog

A Reminder: You Can’t Subpoena Non-Party ISPs for Emails in Civil Suits

Post author:Bruce E. Boyden
Post published:January 9, 2009
Post category:Computer Law Federal Civil Litigation

I ordinarily wouldn’t blog about an unpublished short opinion from a magistrate judge in the Northern District of Mississippi (even though great things do come from there), but I view this as the leading edge of a wave of such opinions. In J.T. Shannon Lumber Co. v. Gilco Lumber, Inc., 2008 U.S. Dist. LEXIS 104966 (N.D. Miss. Aug. 14, 2008), Magistrate Judge S. Allan Alexander quashed the plaintiff’s Rule 45 subpoenas on Microsoft, Google, and Yahoo, which sought the “entire contents” of the email accounts of three of the individual defendants, employees of Gilco.

In addition to the ridiculously overbroad nature of the requests (all of the emails in their personal accounts?), J.T. Shannon’s subpoenas ran up against the Stored Communications Act (SCA), Title II of the Electronic Communications Privacy Act. The SCA prohibits a non-party ISP from disclosing emails to litigants in a civil case without the consent of its subscriber. This law may seem counterintuitive to litigation attorneys, who are used to being able to subpoena whomever they want within the scope of the Federal Rules of Civil Procedure. But the SCA is not incredibly onerous; it just means you have to request that the party produce their own emails, not the ISP.

Ruan on the Accommodation of Religious Speech in the Workplace

Post author:Richard M. Esenberg
Post published:January 5, 2009
Post category:Labor & Employment Law Legal Scholarship Religion & Law U.S. Supreme Court

In the fall issue of the Marquette Law Review, Professor Nantiya Ruan of the University of Denver Sturm College of Law has written an interesting article entitled “Accommodating Respectful Religious Expression in the Workplace.” It is always hard to summarize a serious piece of scholarship in the few sentences that a blog post will permit and I am, of course, likely to emphasize those aspects of the piece that I found intriguing. It is also true, since I have decided to post a response and not a blurb, that I will emphasize those things that I see differently. So, with advance apologies to Professor Ruan, here is how I read the article.

Ruan posits an inconsistency between the emerging willingness of the Supreme Court to protect religious expression in public spaces (as illustrated by the Ten Commandments cases of 2005) and its rather narrow reading of the requirements to accommodate religious expression in the workplace under Title VII, where employers need incur no more than a de minimis burden to accommodate religious expression and practice.

I am sympathetic to Ruan’s arguments for greater accommodation of religious expression in the workplace. She does a nice job of advancing the notion that religion is fundamental to individual identity, although I would have added, as I have in recent papers, the notion that mandated secular spaces harm religion.

But I want to comment on her claim of an inconsistency between the recent trend toward toleration of religion in the public square and the treatment of religion in the workplace.

Seventh Circuit Week in Review, Part II: Illinois Corruption, Prior Acts Evidence, 911 Calls, and 30 Rock

Post author:Michael M. O'Hear
Post published:January 4, 2009
Post category:Criminal Law & Process Federal Criminal Law & Process Seventh Circuit

In my earlier “Week in Review” post, I discussed the Seventh Circuit’s new sentencing decisions. This post rounds out my review of the Seventh Circuit’s busy week.

In United States v. Turner (No. 07-1062), a jury convicted the defendant of wire fraud and making false statements to the FBI. Turner was a supervisor in the Illinois Secretary of State’s office. In that position, he assisted three janitors in a scheme to obtain compensation for work they did not perform. (Insert your favorite joke about corruption in Illinois state government here.) On appeal, Turner argued there was no evidence to establish that the fraud was committed by use of the wires. However, the Seventh Circuit (per Judge Sykes) held it was enough that the janitors’ fraudulently inflated paychecks were direct-deposited in their accounts. Turner also argued that, since he himself derived no benefit from the fraud, the evidence was insufficient to convict him of “honest services” fraud. However, the court indicated that the benefit received by the janitors would suffice, and, in any event, “honest services” was only one of two alternative wire fraud theories submitted to the jury. Finally, Turner argued that the evidence was insufficient to support the false statements conviction because, although he lied to FBI investigators, the investigators were not fooled by what he said. Again, the court disagreed:

A false statement neen not actually influence the agents to whom it is made in order to satisfy the materiality requirement for this offense; it need only have the possibility of influencing a reasonable agent under normal circumstances.

Turner’s convictions were thus affirmed in all respects.