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Dwayne B.
Dwayne B., Attorney
Category: Legal
Satisfied Customers: 26688
Experience:  Began practicing law in 1992
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This is a family law matter. I am going through a divorce and

Customer Question

This is a family law matter. I am going through a divorce and need to know if it's possible to subpoeana gmail/google. I prefer to hear back from someone who has tried a subpoena on google/gmail.
My ex is hiding the earnings on a large investment with our community funds done with a family member. He has created a fake contract with the family member who was paying a very high interest on this investment and the contract's fake terms would indicate a loss. Our financial records do not reflect all the facts; however, the emails he has exchanged with this family member has pertinent information on the nature of the contract and monthly statements on the return. I need to know about the exact process and how successful gmail subpoenas are. I read online that it has to be done a very specific way or they usually get denied. I have tried contacting google's main line to get information but can't get through.
Submitted: 10 months ago.
Category: Legal
Expert:  Dwayne B. replied 10 months ago.

JD 1992 :

Hello and thank you for contacting Just Answer. I am an expert here and I look forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification.

JD 1992 :

I was involved in a case a number of years ago that subpoenaed records from Google.

JD 1992 :

It is possible so long as a case has been filed in a U.S. court.

JD 1992 :

You have to have the subpoena issued by your court and then "domesticate" the subpoena in CA.

JD 1992 :

California Code of Civil Procedure Section 2029.300 explains how to domesticate the subpoena there.

JD 1992 :

Essentially you have to:

JD 1992 :


  1. Pay Court Costs, then hire a Process Server either private or a law enfoircement officer in Santa Clara County, California, along with the filings include (two SASE), Include an original copy of your local subpoena and 2 copies, complete and include Form SUBP030 which you can find at http://www.courtinfo.ca.gov/forms/documents/subp030.pdf, complete and include Form SUBP035, which you can find at http://www.courtinfo.ca.gov/forms/documents/subp035.pdf, also send the $30 filing fee, and with the court in San Jose, CA.



JD 1992 :

The contact info for Google is


Google Legal Investigations Support


1600 Amphitheater Parkway


Mountain View, CA 94043


 


Phone Number: (NNN) NNN-NNNN/p>

Fax Number: (NNN) NNN-NNNN/p>

E-mail: XXX@XXXXXX.XXX


Custodian of Records Fax:(NNN) NNN-NNNN/p>

JD 1992 :

There is a good article on getting info from social media sites at http://www.msba.org/sec_comm/sections/solo/docs/ObtainingRecordsFromSocialNetworkingWebsites.pdf

JD 1992 :

The website is showing you are offline so I will save and exit so I can assist others. If you have any additional questions please feel free to ask them in this thread. I will be online most of the day but it may take a little while for me to answer if I am assisting others.

Customer:

I think there may be a misunderstanding. I live in the Los Angeles area and I have my divorce has been filed by a family law attorney at the local court.

JD 1992 :

Sorry, I thought that you were out of state.

Customer:

Let me clarify: I live in Los Angeles and my divorce has been filed at the local court by my attorney. My attorney wasn't clear on whether or not google can successfully be subpoenaed and how. My attorney has subpoenaed bank accounts and credit cards but he was not clear on Whether or not my ex's gmail can be subpoenaed so I'm doing the research.

JD 1992 :

You would get the subpoena issued from your court and then served by a process server where Google is located, their address and contact info is show above.

JD 1992 :

Google can be subpoeaned and they will respond.

JD 1992 :

The subpoena has to be a good one, not too vague, explain what you want, etc.

Customer:

Would the same standard forms be used?

JD 1992 :

Google has varied the amount of time they retain information. I believe right now it is retained for six months.

JD 1992 :

I think it is the same forms throughout CA.

JD 1992 :

Occasionally a court may issue local rules and say "use these instead" but your lawyer would know that.

JD 1992 :

Google will notify her you are trying to obtain the records and give her a chance to respond and object.

JD 1992 :

If she does object or Google objects for some reason then you would have to have a hearing on the matter, just like with anyone else.

JD 1992 :

Google just recently said they can access everyone's g-mails so that won't be an issue.

JD 1992 :

The only issue is how long they retain them.

JD 1992 :

I read recently it is six months, but they can change it at a whim so there is never a guarantee.

Customer:

The emails are from 2009 to the present time and I don't believe he would delete them but he may once he gets a notice that his email is being subpoenaed. Do you know if it's possible to speak to someone live at Google. I have been on hold for 6 hours at their main number: XXX-XXX-XXXX

JD 1992 :

The only number that is available is the one I gave you above.

JD 1992 :

However, I could never get through to them via the phone. They do respond to emails...eventually.

JD 1992 :

Did you have additional questions?

JD 1992 :

I'm not sure if you are still online so I will save and exit so I can assist others. If you have any additional questions please feel free to ask them in this thread.

JD 1992 :

If you have no additional questions then best wishes to you on this and please don't forget to leave a Positive Rating (of course I’d suggest Excellent!) so I get credit for my work.

Customer:

I called that number and they don't have a live person but I will email. When you say they retain the records for 6 months, do you mean even if they still currently exist on the gmail account and are more than 6 months old, they can't get them? Or, if they have been deleted?

JD 1992 :

I am not 100% sure, since that wasn't an issue in my case, but I believe from what I have read it is six months after they have been deleted. If they are still on the gmail account, for instance saved in a folder, there is no reason they shouldn't be able to get them.

JD 1992 :

Anything else I can help with?

Customer:

I just read the article you had sent and my understanding is that Google does not respond to Civil subpoeanas unless the user of that account gives a consent? Am I understanding correctly?

Customer:

my situation would be a civil request, correct?

JD 1992 :

No, that's not absolutely correct. They will respond if the user doesn't object and they may respond even then. As I mentioned above they can't just ignore a proper subpoena so they would have to file a Motion to Quash in the court and then the court could rule on it and still give you the materials. Google will not ignore a court order.

JD 1992 :

It would be a civil request.

Customer:

Want to make sure I understand correctly: If my ex objects which he most likely will, then he would need to file a motion and the court meaning the judge can still nullify his motion?

JD 1992 :

Yes, they would have to file a Motion to Quash Subpoena.

JD 1992 :

However, just because they file it doesn't mean the judge will grant it. Judges are inclined to grant any discovery requests with a reasonable explanation behind them.

Customer: XXX@XXXXXX.XXX

Customer:

Fyi, that email address is no longer accepting emails (as of 1/2013). I got a message to send emails to:

Customer: XXX@XXXXXX.XXX

Customer:

Thank you for your help

Customer:

I will rate you highly

JD 1992 :

You're very welcome.

Customer:

If I have other questions regarding this matter in the near future, can I still ask?

Customer:

just curious, have you ever subpoenaed Facebook?

JD 1992 :

If you remember, when this issue gets resolved come back to this thread and let me know what happens. Once you issue your Positive Rating the question locks open and you can come back anytime in the future at no charge. I like to keep track of what happens and what courts are doing at the trial level.

JD 1992 :

You can always ask for me when opening a new question by starting it with the words FOR JD 1992 and i will pick up as soon as I see it. I am usually online at least a few minutes every day.

JD 1992 :

I've never subpoenaed Facebook but it would work the same way as it does with Google. They have a page at https://www.facebook.com/help/473784375984502/ with some info about their procedures.

Customer:

Hopefully it won't go to trial! I will keep the threat and contact you.

Customer:

Thanks!

Customer:

What type of law do you practice?

Customer:

or have practiced

Dwayne B., Attorney
Category: Legal
Satisfied Customers: 26688
Experience: Began practicing law in 1992
Dwayne B. and 9 other Legal Specialists are ready to help you
Expert:  Dwayne B. replied 10 months ago.
I did trial work, civil and criminal. Now I just consult.
Customer: replied 10 months ago.

ok, thanks.


 

Expert:  Dwayne B. replied 10 months ago.
One more thing I just thought of, to avoid any arguments from Google, facebook, etc. Your lawyer can send a Request for Production to the other party and ask them to produce a signature on an authorization to obtain the release of information from Google, Facebook, etc. It is common to get those for IRS info, medical records, etc. and it would probably make sense to do that.
Customer: replied 10 months ago.

Can he refuse to sign? Are there any consequences if he refuses?

Customer: replied 10 months ago.

Can he refuse to sign? Are there any consequences if he refuses?


Also, doesn't that give him heads up to delete the emails?

Expert:  Dwayne B. replied 10 months ago.
The court can order him to sign and issue sanctions if he refuses. Facebook cites a federal statute on that page I gave you the link to and I read through it and it discusses privacy. It doesn't say that a subpoena can't get the materials and I don't see how a private company can ignore a court order but it specifically states that a person can authorize the release of the information so it would potentially save a lot of time and effort to just get him to sign a release. The IRS takes the same position on state court subpoenas but they will honor a release. Getting one would prevent any argument.

It would give him a heads up so you may want to talk to the lawyer about an injunction to prevent it. I think they would still have the info anyway but better safe than sorry.
Customer: replied 10 months ago.

Do you mean an injunction to prevent him from deleting the files?


 

Expert:  Dwayne B. replied 10 months ago.
Correct. Deleting files, erasing emails, etc.
Customer: replied 10 months ago.

I see... So when you say the court can order him to sign, it means first my lawyer would approach him with an injunction to prevent him from deleting emails/files, then if he refuses the court enforces it?


Do we physically have to be in court for such a thing to happen or the attorneys process it as they have been with everything so far?


I ask because i filed for divorce 8 months ago and we are just having our first court date in 4 weeks and it's to get attorney/forensic fees, and temporary support for me. Do we deal with this issue while in court or it needs to be stated somewhere. I guess I'm unfamiliar with the order in which things take place. It seems to be difficult and costly to stand in front of a judge and have him address everything.

Expert:  Dwayne B. replied 10 months ago.
The way I would see it going is the lawyer goes to court and gets a Temporary Restraining Order preventing him from deleting evidence, then sets the TRO for a hearing in the immediate future.

Once the TRO is granted and served he can send a RFP asking for a signature on the release.

Then if a signature is not provided he can set it for a Motion to Compel.
Customer: replied 10 months ago.

Thanks. The TRO is a temporary restraining order which is the same as the injuction?

Expert:  Dwayne B. replied 10 months ago.
Yes, a TRO can be issued without notice to him but an injunction requires notice. It usually goes 1) TRO then 2) Temporary Injunction then 3) Permanent Injunction.

you won't need 3 since this is just while the case is pending.
Customer: replied 10 months ago.

thanks

Expert:  Dwayne B. replied 10 months ago.
You're welcome.
Customer: replied 10 months ago.

Hi, I received a response from Google today:


 


Hello,

The information you are requesting is subject to state and federal laws. In accordance with those laws, it is Google's policy to only provide subscriber information pursuant to a valid third party subpoena or other appropriate legal process.

Section 2702(a) of the federal Stored Communications Act prohibits Google from disclosing the content of electronic communications pursuant to a subpoena. 18 U.S.C. § 2702(a) see e.g., Suzlon Energy Ltd. v. Microsoft Corp, 671 F.3d 726, 730 (9th Cir. 2011); Theofel v. Farey-Jones, 359 F.3d 1066 (9th Cir. 2004); Mintz v. Mark Bartelstein & Assocs., Inc., --- F.Supp.2d ---, 2012 WL XXXXXXX at *5 (C.D. Cal. Aug. 14, 2012); In re Subpoena Duces Tecum to AOL, LLC., 550 F.Supp.2d 606, 611 (E.D. Va. 2008); Flagg v. City of Detroit, 252 F.R.D. 346, 366 (E.D. Mich. 2008); Viacom Int'l Inc. v. YouTube Inc., 253 F.R.D. 256 (S.D.N.Y. 2008); O'Grady v. Superior Court of Santa Clara, 139 Cal. App. 4th 1423, 1441-43 (2006). The appropriate way to seek such content is to direct your request to the account holder who has custody and control of the data in the account. Suzlon, 671 F.3d 726, 730-31; Mintz, 2012 WL XXXXXXX at *5; O’Grady, 139 Cal. App. 4th at 1446-47. If the account holder is a party to the underlying litigation, you may serve a document request on the account holder for the content sought. See Mintz, 2012 WL XXXXXXX at *5; O’Grady, 13 Cal. App. 4th at 1446-67; see also Flagg, 252 F.R.D. at 348, 366-67.

We accept civil subpoenas by personal service. We are unable to accept service by mail or any form of electronic service at this time. Google accepts subpoenas issued from Santa Clara Superior Court or the U.S. District Court for the Northern District of California via personal service on the Google Custodian of Records for Google, Inc. at 1600 Amphitheatre Parkway, Mountain View, California, 94043.

Regards,
Legal Investigations Support


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Expert:  Dwayne B. replied 10 months ago.
That's not much different than what I expected which is why you have to get a release/authorization from the other side. With a release/authorization and a subpoena then they will have to provide it.
Customer: replied 10 months ago.

So does their response say that Google is prohibited from disclosing account information and the only way to get the information is that the account holder gets served a document request for what is needed?

Expert:  Dwayne B. replied 10 months ago.
No, it just means they have to have a release, just like the IRS. If you notice, none of those cases are Supreme Court cases and I have my doubts as to whether it is constitutional for he legislature to say a court subpoena can be ignored but it's not something you want to spend the money to litigate so if you get a release it takes care of the problem.
Customer: replied 10 months ago.

Yes I didn't word it correctly. They need a release from the account holder before disclosing the information so if we subpoeana without the release, Google is saying that they are prohibited from giving out the information.

Expert:  Dwayne B. replied 10 months ago.
That's correct. That law is relatively new as are the cases. The release will/should solve the problems.
Expert:  Dwayne B. replied 10 months ago.
Thank you very much for the Positive Rating. Please come back and visit us if you have any new questions and feel free to ask for me by placing “FOR JD 1992” in the subject line or as the first words of your question and I will pick up as soon as I see it.
Customer: replied 10 months ago.

Thank you. By the way, I was just going through some subpoenas and saw that he had bought $650,000 worth of stocks and lost all of it without my knowledge or consent.

Expert:  Dwayne B. replied 10 months ago.
Wow! That's a chunk of money! Be sure and show that to the judge as well when you ask for the release to be signed.

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