SUZANNE H. SEGAL, United States Magistrate Judge.
On March 23, 2012, Aaron L. Mintz ("Plaintiff") filed a Complaint for Declaratory Relief (the "Complaint") against Mark Bartelstein & Associates, Inc., d/b/a Priority Sports & Entertainment ("Defendant" or "Priority Sports").
On April 6, 2012, Plaintiff filed a Complaint for Damages and Injunctive Relief (the "Second Complaint") against Defendant and Mark Bartelstein (collectively, "Defendants") in Case No. CV 12-03055 SVW (SSx). In the Second Complaint, Plaintiff alleges, inter alia, that Defendants illegally accessed his personal email account, (Second Complaint at 4-5), and
On April 17, 2012, Defendants filed a Counterclaim (the "Counterclaim") against Plaintiff in Case No. CV 12-02554 SVW (SSx). On April 25, 2012, Defendants filed the same Counterclaim against Plaintiff in Case No. CV 12-03055 SVW (SSx). In the Counterclaim, Defendants allege, inter alia, that Plaintiff misappropriated trade secrets and conspired with Plaintiff's future employer (a competitor sports agency) to steal clients. (Counterclaim at 9-14).
On June 18, 2012, the District Judge consolidated Case No. CV 12-03055 SVW (SSx) with Case No. CV 12-02554 SVW (SSx) and directed that all subsequent filings be made in the lead case, Case No. CV 12-02554 SVW (SSx).
On June 26, 2012, Plaintiff filed a Motion To Quash Subpoena To AT & T, For A Protective Order, And For Sanctions (the "Motion"), as well as a Joint Stipulation Regarding The Motion (the "Joint Stip."). On July 3, 2012, Plaintiff filed a Supplemental Memorandum In Support Of The Motion (the "Plaintiff's Supp. Memo."), as well as Objections To The Declaration Of Lauren M. Gibbs Filed In Opposition To The Motion (the "Objections").
In the Motion, Plaintiff seeks to quash a subpoena served on AT & T by Defendants because the subpoena is overbroad and seeks confidential information. (Joint Stip. at 2-4). The subpoena seeks information related to telephone calls and text messages made or received by an AT & T account bearing Plaintiff's name. (Id., Declaration of Robert Horn ("Horn Decl."), Exh. A at 31-32). Defendants contend that this information is necessary to prove their counterclaims that Plaintiff made false and defamatory statements about Priority Sports and improperly solicited Priority Sports' clients while still employed at Priority Sports. (Id. at 5). Defendants further contend that Plaintiff has no expectation of privacy in information related to the AT & T account because Priority Sports owned the account and paid all the bills. (Id. at 4-5). Finally, Defendants contend that Plaintiff expressly waived any privacy rights in the AT & T account because he signed an employment manual (the "Employment Manual") stating that any personal information on company telephone systems shall be the property of Priority Sports and that Priority Sports has the right to review all e-mail, voice mail, and telephone messages. (Id. at 5).
On July 17, 2012, the Court held a hearing to consider the Motion. At the hearing, Plaintiff's counsel objected to Defendants' assertion that, based on the Employment Manual, Plaintiff waived any privacy interest he had in the AT & T account because Defendants failed to provide evidence demonstrating that Plaintiff actually signed or had notice of the Employment Manual. Defendants' counsel stated that she believed Plaintiff had signed the Employment Manual, but did not know definitively. Thus, the Court directed the parties to supplement the record to clarify whether Plaintiff signed the Employment Manual, and if not, whether he had notice of it. On July 24, 2012, Defendants filed a Supplemental
The Stored Communications Act ("SCA") generally prohibits "`providers' of communication services from divulging private communications to certain entities and/or individuals." Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892, 900 (9th Cir.2008), rev'd on other grounds by City of Ontario, Cal. v. Quon, ___ U.S. ___, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010) (reversing on Fourth Amendment grounds only); see also City of Ontario, 130 S.Ct. at 2627 ("The petition for certiorari filed by Arch Wireless challenging the Ninth Circuit's ruling that Arch Wireless violated the SCA was denied."). The SCA provides different prohibitions depending on whether the communications provider is classified as an "electronic communication service" or a "remote computing service." 18 U.S.C. § 2702(a). The Ninth Circuit has held that wireless communications providers such as AT & T are properly classified as an "electronic communication service." Quon, 529 F.3d at 901 (holding that text messaging pager services provided by Arch Wireless constitute an "electronic communication service" and not a "remote computing service"); see also S.Rep. No. 99-541, at 14 (1986), 1986 U.S.C.C.A.N. 3555, 3568 ("Existing telephone companies and electronic mail companies are providers of electronic communications services.").
Thus, AT & T must comply with the rules applicable to electronic communication services and "shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service," 18 U.S.C. § 2702(a)(1), unless one of the specifically enumerated exceptions in 18 U.S.C. § 2702(b) apply. 18 U.S.C. § 2702(b) contains a number of exceptions which do not apply here, such as the exceptions for law enforcement purposes. 18 U.S.C. § 2702(b)(6)-(8). The relevant exceptions include 18 U.S.C. § 2702(b)(1), which permits the disclosure of the contents of a communication "to an addressee or intended recipient of such communication or an agent of such addressee or intended recipient." Additionally, 18 U.S.C. § 2702(b)(3) permits the disclosure of the contents of a communication "with the lawful consent of the originator or an addressee or intended recipient of such communication."
The SCA does not contain an exception for civil discovery subpoenas. See, e.g., Crispin v. Christian Audigier, Inc., 717 F.Supp.2d 965, 976 (C.D.Cal.2010) (rejecting argument that the SCA permits the disclosure of the contents of communications pursuant to a civil discovery subpoena)
By contrast, the SCA permits AT & T to "divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications) ... to any person other than a governmental entity." 18 U.S.C. § 2702(c)(6). Because Defendants are not a governmental entity,
Defendants' subpoena to AT & T requests the following ten categories of documents:
(Joint Stip., Horn Decl., Exh. A at 31-32).
As set forth above, Category Nos. 1, 2, 3, 4, 9, and 10 seek only subscriber information and not the content of any communications. (Joint Stip., Horn Decl., Exh. A at 31-32). As Defendants are not a governmental entity, AT & T may disclose this information to them consistent with the SCA. See 18 U.S.C. § 2702(c)(6). However, Category Nos. 5, 6, 7, and 8 seek the content of incoming and outgoing text messages. (Joint Stip., Horn Decl., Exh. A at 31-32). Because AT & T is an "electronic communication service" within the meaning of 18 U.S.C. § 2702(a)(1), it may not disclose the content of text messages unless Defendants are "an addressee or intended recipient of such communication or an agent of such addressee or intended recipient," 18 U.S.C. § 2702(b)(1), or unless AT & T obtains "the lawful consent of the originator or an addressee or intended recipient of such communication." 18 U.S.C. § 2702(b)(3).
The parties have not addressed the application of the SCA to Defendants' subpoena.
While the SCA prohibits AT & T from disclosing the content of any text messages to Defendants pursuant to a subpoena, the SCA does not prevent Defendants from obtaining this information through other means. See, e.g., Flagg, 252 F.R.D. at 366 (holding that although the SCA prohibited a phone company's disclosure pursuant to a civil discovery subpoena, the plaintiff could obtain the same information by serving a request for production of documents on the defendant pursuant to Federal Rule of Civil Procedure 34); Juror Number One v. Superior Court, 206 Cal.App.4th 854, 865, 142 Cal.Rptr.3d 151 (2012) (holding that although the SCA prohibited the court from ordering Facebook to produce copies of a juror's wall postings, the court could order the juror to request the wall postings from Facebook directly). Indeed, Federal Rule of Civil Procedure 34(a)(1) expressly permits a party to "serve on any other party a request ... to produce" "electronically stored information" that is "in the responding party's possession, custody, or control." Here, documents reflecting the content of Plaintiff's text messages are within his "control" because he has "the legal right to obtain [these] documents on demand" from AT & T. United States v. Int'l Union of Petroleum & Indus. Workers, 870 F.2d 1450, 1452 (9th Cir.1989); see also Duran v. Cisco Systems, Inc., 258 F.R.D. 375, 379 (C.D.Cal.2009). Because Plaintiff is the "originator" of his text messages, he may request copies of these messages from AT & T consistent with the SCA. See 18 U.S.C. § 2702(b)(2).
Thus, Defendants may request documents reflecting the content of Plaintiff's relevant text messages, consistent with the SCA, by serving a request for production of documents on Plaintiff pursuant to Rule 34.
In sum, the SCA prevents AT & T from providing the content of text messages to Defendants under the current subpoena. However, because Category Nos. 1, 2, 3, 4, 9, and 10 seek only subscriber information and not the content of communications, AT & T may disclose this information to Defendants consistent with the SCA. Although the SCA does not prohibit AT & T from disclosing subscriber information to Defendants, Plaintiff raises privacy objections to this information. (Joint Stip. at 3-4). Thus, the Court must next examine whether the disclosure of Plaintiff's subscriber
The Court has jurisdiction over this action, including Defendants' counterclaims, pursuant to 28 U.S.C. § 1332 because the parties are of diverse citizenship and the amount in controversy exceeds $75,000. (Counterclaim at 1). Because jurisdiction is based on diversity, the Court looks to the substantive law of the forum state, California, to resolve the assertion of Plaintiff's privacy rights. See, e.g., Downing v. Abercrombie & Fitch, 265 F.3d 994, 1005 (9th Cir.2001); Home Indem. Co. v. Lane Powell Moss & Miller, 43 F.3d 1322, 1326 (9th Cir.1995); see also F.R. Evid. 501 ("[I]n a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision."). "Where the state supreme court has not ruled on a question in issue, [a federal court sitting in diversity] look[s] to other state-court decisions, well-reasoned decisions from other jurisdictions, and any other available authority to determine the applicable state law." Home Indem. Co., 43 F.3d at 1326 (internal quotation marks omitted).
Under the California Constitution, all people have a constitutionally protected right to privacy. See Cal. Const. Art. I, § 1 ("All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy."). To prevent a constitutionally protected invasion of privacy, a plaintiff must establish: "(1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy." TBG Ins. Services Corp. v. Superior Court, 96 Cal.App.4th 443, 449, 117 Cal.Rptr.2d 155 (2002) (internal quotation marks omitted); accord Life Technologies Corp. v. Superior Court, 197 Cal.App.4th 640, 652, 130 Cal.Rptr.3d 80 (2011).
"Assuming the existence of a legally cognizable privacy interest, the extent of that interest is not independent of the circumstances, and other factors (including advance notice) may affect a person's reasonable expectation of privacy." TBG Ins. Services Corp., 96 Cal.App.4th at 449, 117 Cal.Rptr.2d 155. "A reasonable expectation of privacy is an objective entitlement founded on broadly based and widely accepted community norms, and the presence or absence of opportunities to consent voluntarily to activities impacting privacy interests obviously affects the expectations of the participant." Id. (internal quotation marks omitted).
As set forth above, the parties have submitted supplemental declarations to clarify the facts regarding Plaintiff's assertion of his right to privacy. According to Plaintiff, "[t]he phone number on the AT & T account identified in Priority Sports' subpoena was [his] personal mobile phone number before [he] became employed with Priority Sports in September 2001." (Mintz Decl. at 2, ¶ 2). Plaintiff states that he "had no other mobile phone number for the more than 11 years [he] was employed with Priority Sports" and that he "used the mobile phone number for all of [his] personal mobile phone communications prior to and during [his] employment." (Id.). Plaintiff states that "[a]bout two months after [he] began working [for Priority Sports], [he] mentioned to Kenny Zuckerman, [his] supervisor and the office manager, that [he] was using [his] personal mobile phone for business, and asked if the
Plaintiff states that in "early October 2009," he became "dissatisfied with Verizon, which was [his] mobile carrier at the time," and so he "opened the AT & T account identified in Priority Sports' subpoena." (Mintz Decl. at 2, ¶ 4). Plaintiff states that he "set up the AT & T account as a personal account, not a business account" and that he "had no other personal mobile number or personal mobile telephone account." (Id.). According to Plaintiff, he "simultaneously purchased a Blackberry from AT & T" at a cost of $413.33. (Id. at 2, ¶ 5). Plaintiff states that "Priority Sports paid only $300, and deducted $113.33 from [his] paycheck." (Id.); (see also id., Exh. 1) (credit card statement showing cost of Blackberry and pay stub reflecting deduction).
Plaintiff states that he contacted AT & T regarding his mobile telephone on March 23, 2012, the same day he resigned from Priority Sports, and was informed that "[his] personal AT & T account that [he] opened in early October 2009 had been changed to a Priority Sports business account in late 2011." (Mintz Decl. at 3, ¶ 6). Plaintiff states that he "never requested that [his] personal AT & T account be changed to a business account, nor did [he] authorize anyone to make this change." (Id.).
With regard to the Employment Manual, Plaintiff states that he "never read the manual," that he has "no recollection of having signed [an] acknowledgment" of the terms of the manual, and that he "believe[s][he] never did." (Mintz Decl. at 3, ¶ 7). Plaintiff states that "no one from [Priority Sports] orally informed [him] of any policy providing any of the following: that [he] could only use [his] Blackberry for company business; that personal use of [his] Blackberry should be kept to an absolute minimum; that Priority Sports was asserting that it own[ed] the Blackberry and [his] personal information stored on the device; that Priority Sports was asserting that it had the right to monitor and review [his] personal information on [his] Blackberry; that Priority Sports was asserting that [he] [had] no right of privacy in information related to [his] personal telephone calls, personal text messages, and call locations." (Id. at 3, ¶ 8).
Finally, Plaintiff states that "[g]iven that the mobile telephone number was [his], the AT & T account was [his] personal account (until someone changed to a Priority Sports business account without [his] knowledge or consent a few months before [his] resignation), [he] paid part of the purchase price of the Blackberry at Priority Sports' insistence, and [he] was unaware of any computer policy concerning mobile devices, [his] expectation was that information related to [his] personal telephone calls, personal text messages, and locations where [he] used [his] mobile phone was [his] private information." (Mintz Decl. at 3-4, ¶ 9).
Defendants have offered the declaration of Mark Goldstick, Chief Financial Officer and head of Human Resources of Priority Sports. (Goldstick Decl. at 2, ¶ 1). Mr. Goldstick asserts that he sent all Priority Sports employees an email on December 28, 2009 "telling them that they would be receiving a revised Priority Sports' employee handbook and that it was `very important that everyone read and understands the manual so there are no misunderstandings of Priority's policies.'" (Id. at 2, ¶ 2); (see also id., Exh. 1) (copy of December 28, 2009 email). Plaintiff is the first addressee in this email. (Id., Exh. 1). Mr. Goldstick states that "[o]n December 29, 2009, [he] sent the Employment Manual
According to Lauren Gibbs, counsel for Defendants, Plaintiff's counsel provided her with boxes of documents from Plaintiff's office. (Gibbs Decl. at 2, ¶¶ 2-4). Ms. Gibbs states that one of the boxes contained a copy of the Employment Manual. (Id. at 2, ¶ 5). This copy of the Employment Manual contained Section 5.10, which states in relevant part:
(Id. at 3, ¶ 6); (see also id., Exh. 2) (copy of Section 5.10 of the Employment Manual). Finally, Ms. Gibbs notes that Plaintiff admitted receiving a copy of the Employment Manual in his Answer to the Counterclaim. (Id. at 3, ¶ 7); (see also id., Exh. 23 at 4, ¶ 28) (copy of Plaintiff's Answer to the Counterclaim).
As set forth above, the Court must consider all the circumstances to determine the extent of Plaintiff's expectation of privacy in the AT & T account. See TBG Ins. Services Corp., 96 Cal.App.4th at 450, 117 Cal.Rptr.2d 155 ("[O]ur decision about the reasonableness of [the employee's] claimed expectation of privacy must take into account any accepted community norms, advance notice to [the employee] about [the employer's] policy statement, and whether [the employee] had the opportunity to consent to or reject the very thing that constitutes the invasion."). Having considered the facts in the parties' supplemental declarations, the Court concludes that the circumstances weigh both in favor of, and against, Plaintiff's expectation of privacy. Thus, the Court concludes that Plaintiff had only a limited expectation of privacy in the AT & T account.
As an initial matter, the mobile phone number in question was Plaintiff's personal number before he began working for Priority Sports. (Mintz Decl. at 2, ¶ 2). Priority Sports began paying the bill for this phone shortly after Plaintiff started working at Priority Sports because Plaintiff was using his personal phone to also make business calls. (Id. at 2, ¶ 3). Thus, Priority Sports knew that Plaintiff was using the phone to make personal calls. (Id.). The fact that Priority Sports was aware of and permitted Plaintiff to make personal calls increases Plaintiff's expectation of privacy because he could reasonably believe that he had Priority Sports' approval to use the phone for personal reasons.
By contrast, the facts surrounding Plaintiff's purchase of a Blackberry fall both in favor and against an expectation of privacy. Plaintiff transferred his account to AT & T from Verizon in early October 2009 and simultaneously purchased a Blackberry. (Mintz Decl. at 2, ¶¶ 4-5). Plaintiff set up the account as a personal account and paid for part of the cost of the Blackberry. (Id.). The total cost of the Blackberry was $413.33. (Id. at 2, ¶ 5). "Priority Sports paid only $300, and deducted $113.33 from [Plaintiff's] paycheck." (Id.). The fact that Plaintiff paid for part of the cost of the Blackberry increases his expectation
On December 28, 2009, Priority Sports distributed an Employment Manual, (Goldstick Decl. at 2, ¶ 2), which advised employees not to use company equipment for personal reasons and stated that Priority Sports had the right to review all e-mail, voice mail, and telephone messages on company equipment. (Gibbs Decl. at 3, ¶ 6). While Plaintiff received a copy of the Employment Manual, (id. at 3, ¶ 7), he never read the manual, has no recollection of signing an acknowledgment of the terms of the manual, and believes that he never signed any such acknowledgment. (Mintz Decl. at 3, ¶ 7). Defendants have not produced any contrary evidence proving that Plaintiff did sign such an acknowledgment. The fact that Priority Sports distributed the Employment Manual, which Plaintiff acknowledges receiving, (Gibbs Decl. at 3, ¶ 7), reduces Plaintiff's expectation of privacy. At the same time, however, the fact that Plaintiff never read the Employment Manual or signed an acknowledgment of its terms, mitigates the reduction.
Defendants contend that Plaintiff "has no right to privacy" in the AT & T account and rely primarily on Holmes v. Petrovich Dev. Co., LLC, 191 Cal.App.4th 1047, 1068-69, 119 Cal.Rptr.3d 878 (2011). (Joint Stip. at 11). In Holmes, the California Court of Appeal held that an employee had no expectation of privacy in emails she sent to her attorney from a company computer because the company had a policy against using computers for personal reasons and the policy stated that the company could monitor all emails. Id. at 1068-71, 119 Cal.Rptr.3d 878. The court of appeal emphasized that the computer used to send the emails "belong[ed] to the [company]," that the company had a policy against using its computers for personal reasons, and that the employee was "aware of and agree[d] to these conditions." Id. at 1068, 119 Cal.Rptr.3d 878; see also id. at 1068-69, 119 Cal.Rptr.3d 878 ("Holmes used her employer's company e-mail account after being warned that it was to be used only for company business, that e-mails were not private, and that the company would randomly and periodically monitor its technology resources to ensure compliance with the policy."). Indeed, the employee "admitted reading and signing" the company policy. Id. at 1052, 119 Cal.Rptr.3d 878.
The Court concludes that Holmes weighs against Plaintiff's expectation of privacy in the AT & T account, but Holmes is distinguishable because Plaintiff did not read or sign the Employment Manual, (Mintz Decl. at 3, ¶ 7), as did the employee in Holmes. Holmes, 191 Cal. App.4th at 1052, 119 Cal.Rptr.3d 878. Another important distinguishing factor is that Priority Sports knew Plaintiff was using the AT & T account for personal reasons, (Mintz Decl. at 2, ¶ 3), and the fact that Priority Sports did not pay for the total cost of Plaintiff's Blackberry is tacit recognition of this knowledge. (Id. at 2, ¶¶ 4-5). By contrast, in Holmes, the court of appeal emphasized that the employee "did not use her home computer" to send the emails in question, but "[i]nstead, she used [her employer's] computer." Holmes, 191 Cal.App.4th at 1068, 119 Cal.Rptr.3d 878.
Plaintiff contends that the subpoena served on AT & T violates his privacy rights and relies primarily on Sovereign Partners Ltd. P'shp v. Restaurant Teams Int'l, Inc., 1999 WL 993678, at *3-4 (S.D.N.Y. Nov. 2, 1999), Herff Jones, Inc.
In Herff Jones, Inc., the U.S. District Court for the Western District of Oklahoma quashed subpoenas to AT & T and other telecommunications providers seeking telephone records and GPS data because the court concluded that the requested information was either "not relevant to any claim or defense" or that "the requests [were] overly broad." Herff Jones, Inc., 2007 WL 2344705, at *3. However, the court based its ruling on Federal Rule of Civil Procedure 26 and did not address the issue of privacy rights under state law. Id. at *2-5. Thus, Herff Jones, Inc. also has only slight bearing on the instant case. Moreover, the Court concludes that the telephone records sought by Defendants here are relevant under Federal Rule of Civil Procedure 26(b)(1) to Defendants' counterclaims that Plaintiff made false and defamatory statements about Priority Sports and improperly solicited Priority Sports clients while still employed at Priority Sports.
Finally, in Special Markets Ins. Consultants, Inc., the U.S. District Court for the Northern District of Illinois quashed subpoenas to Verizon Wireless and Yahoo, Inc. seeking email and text messaging records because the records would have revealed the content of communications and disclosure would therefore violate the SCA. Special Markets Ins. Consultants, Inc., 2012 WL 1565348, at *1-3. However, the court held in the alternative, that "even if the subpoenas were not prohibited by the SCA, the court would enter a protective order under Rule 26(c)" because the subpoenas encompassed irrelevant personal communications and therefore were "grossly overbroad." Id. at *3. The Court concludes that Special Markets Ins. Consultants, Inc. weighs in favor of Plaintiff's expectation of privacy in the AT & T account, but provides only limited guidance because the court's primary holding was based on the SCA. The court did not address the issue of privacy rights under state law. Id. at *4-9.
Having considered the applicable authority, as well as the supplemental declarations, the Court concludes that Plaintiff had a legally protected privacy interest in the AT & T account, but that under the circumstances, he had only a limited expectation of privacy. See TBG Ins. Services Corp., 96 Cal.App.4th at 449-50, 117 Cal.Rptr.2d 155. Thus, the Court must next examine the intrusiveness of the requested information. See id. at 449, 117 Cal.Rptr.2d 155. As set forth above, the SCA prohibits AT & T from disclosing the content of any text messages as sought by Category Nos. 5, 6, 7, and 8. Thus, the Court must limit the scope of Defendants' subpoena to telephone numbers and cell site information, as well as the date, time, and duration of calls. (Joint Stip., Horn Decl., Exh. A at 31-32).
The Court concludes that the disclosure of telephone numbers and cell site information, as well as the date, time, and duration of calls does not represent a significant
As set forth above, California law governs the assertion of Plaintiff's privacy rights because this Court has jurisdiction based on diversity. However, the Court finds it significant that federal law is consistent with the Court's application of California law. For example, in City of Ontario, the Supreme Court assumed that a government employee had a reasonable expectation of privacy in text messages sent on an employer-provided pager, but ultimately concluded that the employer's search of the pager by reading the text messages was reasonable. City of Ontario, 130 S.Ct. at 2630-31.
Federal law also supports the Court's conclusion that the disclosure of telephone numbers, as well as the date, time, and duration of calls does not represent a significant intrusion of Plaintiff's privacy. Indeed, the Supreme Court has held that individuals have no expectation of privacy in outgoing telephone numbers because "[a]ll telephone users realize that they must `convey' phone numbers to the telephone company" and that "the phone company has facilities for making permanent records of the numbers they dial." Smith v. Maryland, 442 U.S. 735, 742, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). Relying on Smith, the Ninth Circuit has held that individuals also have no expectation of privacy in incoming telephone numbers and related phone records. See, e.g., United States v. Reed, 575 F.3d 900, 914 (9th Cir.2009) (finding no expectation or privacy in outgoing and incoming telephone numbers, as well as data about "call origination, length, and time of call"); California v. FCC, 75 F.3d 1350, 1361 (9th Cir. 1996) ("A phone number is not among the select privacy interests protected by a federal constitutional right to privacy."); In re Application of United States for an Order etc., 616 F.2d 1122, 1128 n. 4 (9th Cir.1980) ("There can no longer be any constitutional objection to the voluntary compliance of a telephone company with the request of a law enforcement agency for a pen register or trace.")
Federal courts are currently divided over whether individuals have a reasonable expectation or privacy in historic cell site information. See, e.g., In re Application of the United States of America for an Order Directing a Provider of Electronic Communication Service to Disclose Records to the Government, 620 F.3d 304, 317 (3d Cir.2010) (finding expectation of privacy); Id. at 321 n. 11 (Tashima, J., concurring) (suggesting there may be no expectation of privacy, but stating that it depends on unknown facts); In re U.S. for Historical Cell Site Data, 747 F.Supp.2d 827, 839-40 (S.D.Tex.2010) (finding expectation of privacy); U.S. Telecom Ass'n. v. FCC, 227 F.3d 450, 459 (D.C.Cir.2000) (finding no expectation of privacy). As set forth above, however, Plaintiff's privacy interests can be adequately protected with an appropriate protective order. Thus, federal law supports the Court's decision to enforce the subpoena for information other than the content of communications.
IT IS ORDERED THAT Plaintiff's Motion to Quash Subpoena to AT & T, for a