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Individual Lacks Expectation of Privacy in Text Messages or Numbers Dialed, No Standing to Object to Subpoena

Monday, September 19, 2011

Corsair Special Situations Fund, LP v. Engineered Framing Systems, Inc., No. 09–CV–01201, 2011 BL 212342 (D. Md. Aug. 17, 2011) The U.S. District Court for the District of Maryland denied a defendant's motion to quash a subpoena of her wireless text messages and phone records, including billing information and numbers dialed, holding that she had no reasonable expectation of privacy in the information and did not show that it was privileged.

Subpoena Seeks Phone Records

Fourteen months prior to the court's publication of the present opinion, the court entered a judgment of $4.875 million in favor of plaintiff Corsair Special Situations Fund, L.P. against Engineered Framing Systems, Marie Hildreth, John Hildreth, and other defendants. Despite many attempts, Corsair was unable to collect the judgment. According to the court, defendants repeatedly failed to respond to interrogatories or appear in court. The Fourth Circuit approved a final judgment resulting in an order that the defendants show cause as to why they should not be found in contempt of court. Corsair served a subpoena on the custodian of records for Verizon Wireless for "telephone bills, invoices, incoming and outgoing call records, incoming and outgoing text messages, dates of account, invoices, roaming fees, etc." for Marie Hildreth's account. Corsair at 2. Hildreth moved to quash the subpoena.

No Reasonable Expectation of Privacy in Phone Records

Hildreth claimed that the third-party subpoena was a violation of her right to privacy. Corsair argued that she did not have standing to challenge the subpoena on Verizon Wireless. Ordinarily a party does not have standing to challenge a subpoena issued to a non-party. However, there is an exception if "the party claims some personal right or privilege in the information sought by the subpoena." Corsair at 4 (quoting United States v. Idema, 118 Fed. Appx. 740 (4th Cir. 2005)).

— Numbers Dialed

According to the court, Hildreth did not cite any supporting authority that producing the documents sought by Corsair "would violate what Mrs. Hildreth vaguely refers to 'her right to privacy'." Id. The court found that although an individual might have a subjective expectation that numbers she dialed are private, it is not an objectively reasonable expectation because it is not one society is prepared to recognize. Therefore a person has no legitimate expectation of privacy in the numbers dialed on his or her phone. Id. (citing Booker v. Dominion Virginia Power, No. 09-CV-00759, 2010 BL 102168, 9 (E.D. Va. May 7, 2010) and other cases). The court held that Hildreth had no right to privacy in her call records or the numbers associated with her text messages and lacked standing to challenge the subpoena for the records.

— Telephone Bills

Hildreth claimed a right to privacy in her telephone bills, invoices, dates of account, and roaming fees. The court found the case law pertaining to privacy rights in bank records analogous. Bank documents were held by the U.S. Supreme Court to be "business records of the bank" and not the bank customer's private papers. Corsair at 5. (See United States v. Miller, 425 U.S. 435, 440). Therefore, a subpoena on requiring a bank to produce records on a customer does not violate that person's right to privacy. (The decision was abrogated in part by the Right to Financial Privacy Act, 12 U.S.C. §§ 3401-342.) Applying the reasoning to phone records, the court held that Marie Hildreth had no standing to challenge the subpoena with regard to her telephone bills, invoices, dates of account, and roaming fees.

— Text Messages

Hildreth claimed a right to privacy in the contents of her text messages. The court observed that the Fourth Circuit has not held that an individual has a protected privacy interest in the content of text messages sent and received, and that the holdings of other circuits are inconsistent on the issue. Some circuits have found a right to privacy, while others have found that, like letters sent though the mail, any privacy expectation terminates upon delivery. The Supreme Court in City of Ontario v. Quon, 130 S. Ct. 2619 (2010) declined to settle the question when reviewing a public employee's claim of a Fourth Amendment privacy expectation in his text messages. The present court observed that in that case "the Supreme Court made clear" that an "expectation of privacy within the sphere of digital communications is unresolved both in the courts of law and in the court of public perception." Id. at 6. The court therefore held that Hildreth failed to meet her burden of showing that the contents of her text messages were privileged or protected. Having found that she failed to demonstrate standing to challenge any part of the subpoena, the court denied her motion to quash. The court ordered that the information received by Corsair must not be used for any other purpose except to assist in collecting the judgment, must not be copied or disseminated beyond what is necessary collect the judgment, and, once the judgment has been satisfied, all copies must be destroyed or returned to Hildreth. Disclaimer This document and any discussions set forth herein are for informational purposes only, and should not be construed as legal advice, which has to be addressed to particular facts and circumstances involved in any given situation. Review or use of the document and any discussions does not create an attorney-client relationship with the author or publisher. To the extent that this document may contain suggested provisions, they will require modification to suit a particular transaction, jurisdiction or situation. Please consult with an attorney with the appropriate level of experience if you have any questions. Any tax information contained in the document or discussions is not intended to be used, and cannot be used, for purposes of avoiding penalties imposed under the United States Internal Revenue Code. Any opinions expressed are those of the author. The Bureau of National Affairs, Inc. and its affiliated entities do not take responsibility for the content in this document or discussions and do not make any representation or warranty as to their completeness or accuracy. ©2014 The Bureau of National Affairs, Inc. All rights reserved. Bloomberg Law Reports ® is a registered trademark and service mark of The Bureau of National Affairs, Inc.

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