Yahoo Can Turn Over Dead Man’s Emails to Family: Mass. High Court

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By Aaron Nicodemus

Yahoo! Inc. cannot rely on federal stored communications law to refuse to turn over the contents of a deceased man’s email to his family, the Massachusetts Supreme Judicial Court ruled Oct. 16 ( Ajemian v. Yahoo!, Inc. , Mass., No. 12237, 10/16/17 ).

Yahoo argued that the federal Stored Communications Act has prohibited it from turning over emails to the man’s family and a lower court agreed. The Massachusetts high court reversed, finding that the “digital assets” of John Ajemian’s estate can be turned over to the lawfully-appointed representative acting on behalf of the dead man.

Digital assets should be treated in the same way as other confidential information, like those protected by a lawyer-client, doctor-patient, or psychologist-patient privilege, Associate Supreme Court Justice Barbara Lenk wrote for the court, saying the SCA language allowing release of stored material based on “lawful consent” instead of “actual consent” meant that the decedent’s executors could provide consent for him.

Yet, the high court didn’t order Yahoo to turn over the emails. “This does not, however, require Yahoo to divulge the contents of the decedent’s communications to the personal representatives. We conclude only that the SCA does not stand in the way of Yahoo doing so and that summary judgment for Yahoo on this basis was not warranted,” the court said.

John Ajemian, 43, died in a bicycle accident in 2006. He left behind a Yahoo e-mail account that he and his brother, Robert Ajemian, had opened four years earlier. According to court records, he left no instructions regarding treatment of the account. Robert and Marianne Ajemian, John’s siblings, subsequently were appointed as personal representatives of their brother’s estate.

Yahoo also argued it should not be required to turn over the emails because of the terms of its personal service agreement, which John Ajemian agreed to when he and his brother opened the email account in 2002. The agreement “purports to grant Yahoo the apparently unfettered right to deny access to the contents of the account and, if it so chooses, to destroy them rather than provide them to the personal representatives.”

Neither court ruled on “whether the terms of service agreement could constitute an enforceable contract.”

The case was remanded back to the state probate and family court.

Pierce & Mandell PC represented the plaintiffs. ZwillGen PLLC, represented Yahoo.

To contact the reporter on this story: Aaron Nicodemus in Boston at anicodemus@bna.com

To contact the editor responsible for this story: Donald Aplin at daplin@bna.com

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