Filed 11/18/14 Unmodified opinion attached 

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SIXTH APPELLATE DISTRICT 

MATTEO NEGRO, 

Petitioner, 

 v. 

THE SUPERIOR COURT OF SANTA 

CLARA COUNTY, 

Respondent; 

NAVALIMPIANTI USA, INC., 

Real Party in Interest. 

 H040146 

 (Santa Clara County 

 Super. Ct. No. 1-13-CV239634) 

 ORDER DENYING MODIFICATION 

 AND MODIFYING OPINION ON 

 THE COURTS OWN MOTION 

 NO CHANGE IN JUDGMENT 

 

 THE COURT: 

 It is ordered that the opinion filed herein on October 21, 2014, be modified as 

follows: 

 

 1. On the Court’s own motion, the opinion is modified to delete footnote 1 on 

page 5, which will require renumbering of all subsequent footnotes. 

 2. On the signature page, line 2, the name “PREMO, J.” is replaced with “ELIA, 

J.” so the signature page reflects the correct panel as follows: 
 ______________________________________ 

 RUSHING, P.J. 

WE CONCUR: 

____________________________________ 

ELIA, J. 

____________________________________ 

MÁRQUEZ, J. 

 3. Except as granted above, petitioner’s request to modify the opinion is denied. 

The phrase “this order” on page 31 of the typed opinion speaks as of the date of the trial 

court’s issuance of an order complying with this court’s mandate, and not as of the date 

of this court’s decision. 

 There is no change in judgment. 

 ______________________________________ 

 RUSHING, P.J. 

WE CONCUR: 

____________________________________ 

ELIA, J. 

____________________________________ 

MÁRQUEZ, J. 
Filed 10/21/14 Unmodified version 

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SIXTH APPELLATE DISTRICT 

MATTEO NEGRO, 

Petitioner, 

 v. 

THE SUPERIOR COURT OF SANTA 

CLARA COUNTY, 

Respondent; 

NAVALIMPIANTI USA, INC., et al., 

Real Parties in Interest. 

 H040146 

 (Santa Clara County 

 Super. Ct. No. 1-13-CV239634) 

 This original proceeding arises from efforts by real party in interest Navalimpianti 

U.S.A., Inc. (Navalimpianti) to obtain copies of e-mail messages stored by real party in 

interest Google, Inc. (Google), on behalf of petitioner Matteo Negro. Navalimpianti 

caused a subpoena to be served on Google, which Negro moved to quash. Respondent 

court denied the motion, and ordered Google to produce the e-mails, based on its 

conclusion that Negro had consented, or was deemed to have consented, to their 

production. We hold that this order could not be sustained on the record before 

respondent court, and thus constituted an abuse of discretion when the order was made. 

Since then, however, Negro has been ordered by a Florida court to give his express 

consent to disclosure, and he has complied with that order by e-mailing Google and 
2 

consenting to its production of the e-mails sought. We hold that this express consent 

takes the contemplated production outside of the Stored Communications Act, 18 United 

States Code section 2702 (SCA or Act), and permits Google to make the requested 

disclosure, notwithstanding claims by Negro to the contrary. We further hold that in light 

of Negro’s valid express consent to disclosure, the Act poses no impediment to a 

subpoena compelling Google produce the messages. We will therefore issue a 

compulsory writ directing respondent court to modify its order to conform to the consent 

actually given and to accommodate certain other concerns raised by the record. 

BACKGROUND

A. Underlying Action 

 In March 2011 Navalimpianti filed a complaint in the Circuit Court of Dade 

County, Florida against Negro and others. The complaint alleged that a number of 

Navalimpianti’s former officers and employees, including Negro, had committed various 

breaches of duty pursuant to a conspiracy which culminated in their entry into 

competition with Navalimpianti. 

 In June 2012, Navalimpianti applied to the Florida court for authority to take 

Google’s deposition, and seek documents from it, in California. In support of the motion 

Navalimpianti asserted that Negro had an e-mail address in Google’s Gmail domain, 

which he had used to conduct business during the time period relevant to the complaint. 

Navalimpianti sought to discover “any communications between Matteo Negro his codefendants and the persons who participated in the conduct alleged in the pending 

Complaint.” As described in an attached exhibit (Exhibit A), the materials sought were 

“[a]ll e-mails . . . from any gmail account belonging to or maintained by Matteo Negro” 

under a specified username, from June 1, 2009, through June 2010, between Negro and 

14 specified persons or entities. 
3 

 At the hearing on the motion, counsel for Navalimpianti indicated that efforts to 

obtain production of the e-mails directly from Negro had yielded only messages from 

Navalimpianti’s own server. Counsel also reported that when he sought to question a 

supposedly knowledgeable witness about the existence of additional relevant e-mail 

messages, the witness had invoked the Fifth Amendment. Negro’s chief ground of 

opposition to the motion was that the discovery should be directed to Google’s agent for 

service of process in Florida. Counsel for both parties agreed that Google could not be 

expected to “filter” messages for relevance or privilege. Negro’s counsel further asserted 

that if production were made, it would be necessary to “appoint[] a special master or 

someone to review all of this.” 

 The Florida court granted the motion, authorizing Navalimpianti “and the 

applicable California court to issue a subpoena duces tecum for Google Inc. requesting 

the documents described in Exhibit A.” 

B. Subpoena and Petition to Quash 

 Navalimpianti engaged California Attorney Idell, who issued a deposition 

subpoena on December 19, 2012, directing Google’s custodian of records to appear and 

produce the e-mails described in Exhibit A. The subpoena was duly served on Google, 

and on January 9, a Google representative faxed a letter to Idell objecting on multiple 

grounds. These included that “[s]ection 2702(a) of the federal Stored Communications 

Act prohibits Google from disclosing the content of electronic communications pursuant 

to a subpoena. [Citations.] 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. 

[Citations.] 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. [Citations.]” 

 Negro engaged California counsel, who filed a petition in respondent court to 

quash the subpoena under the Interstate and International Depositions and Discovery Act 
4 

(Code Civ. Proc., §§ 2029.100-2029.700). In support of the petition counsel contended 

that the subpoena sought materials beyond the scope of permissible discovery, was not 

sufficiently particularized, sought privileged and irrelevant matter, and was defective in 

various other respects. The initial moving papers did not invoke the Act. 

C. Proceedings Before Florida Magistrate 

 Perhaps in reaction to Google’s objections, Navalimpianti returned to the Florida 

court for an order directing Negro “to execute an Authorization to Release Electronic 

Communications in a form acceptable to Google.” The matter was initially heard by a 

magistrate, who issued an order on June 12 in which she declined to reach the merits, 

reasoning that the question whether to compel Negro’s consent was more appropriately 

addressed in California. 

 Navalimpianti filed exceptions to the magistrate’s report, urging the Florida court 

to adopt instead an order which would (1) identify Negro as “the registered account 

holder and sole authorized user” of a specified Gmail address; (2) recite that Negro 

“consents to Google delivering and divulging the contents of his Gmail account”; 

(3) recite a “find[ing]” that this consent was “sufficient pursuant to the Stored 

Communications Act 18 U.S.C. § 2701 et seq”; (4) direct Negro to e-mail a copy of the 

order to Google attached to an e-mail message stating that “the user consents to Google’s 

disclosure of” documents as described in Exhibit A to the original motion for 

appointment of a commissioner; and (5) call for production of the messages directly to 

counsel for Navalimpianti, unless Google was unable to limit disclosure to messages 

matching the described characteristics, in which case they were to be delivered to a third 

party. 

D. Proceedings on Motion to Quash 

 Navalimpianti’s objections to the magistrate’s report were not heard in Florida 

until September 26, 2013. Meanwhile, in California, counsel for Navalimpianti issued a 
5 

notice of deposition to Google, setting September 19 as the date for testimony and 

production of documents in accordance with the subpoena. Negro’s California attorney 

now asserted for the first time that discovery was barred by the SCA. He insisted that 

Negro had not consented to disclosure, but had instead “litigated the issue in Florida and 

. . . filed a petition in the Santa Clara County Superior Court to litigate the issue here.” 

He asserted—quite correctly at the time—that the Florida magistrate had declined to 

“force consent through a Florida Court order . . . . Therefore, there is no consent for this 

Court to consider . . . .” 

 On July 11, 2013, respondent court issued a tentative ruling denying the petition to 

quash and directing Google to produce the messages to counsel for Navalimpianti, who 

would have 15 days to prepare a privilege log to be delivered to counsel for Negro along 

with materials not withheld pursuant to objection. Any objections would be resolved by 

the Florida court. On the issue of consent, the tentative ruling stated that the court had 

the power to require Negro’s consent; that prior efforts by Navalimpianti to obtain the 

messages directly from Negro had been unsuccessful; and that “[t]herefore, resort to the 

electronic data bailee would seem to be justified.” It then continued, in language that 

would be incorporated in the order now under review, “The concept of court ordered 

consent as an exception to the [SCA] applies here. That order comes from the Florida 

court’s order for appointment of a commissioner to take the testimony and documents 

from Google as well as from this court which now has denied the petition to quash the 

subpoena. It matters little whether the consent is the result of the coercion of discovery 

sanctions or the order of the court over the steadfast objection of the party.”1

 (Italics in 

original.) 

 1

 The tentative ruling was issued by Judge Manoukian, but the final order was 

issued by Judge Stoelker. 
6 

 The motion to quash was continued while the parties attempted to negotiate an 

agreed resolution, which they failed to do, apparently because of differences over how 

the messages should be produced. Navalimpianti’s Florida counsel declared that many of 

the messages were written in Italian, such that Negro’s counsel would have to entrust 

them to his client for translation. Counsel therefore feared that production to counsel 

would “effectively result in the delivery of the Google production into the hands of 

Matteo Negro, not counsel.” He felt obligated to oppose such a measure “[g]iven the 

history of this litigation and the failure of every Negro related party to produce any gmail 

communications.” He therefore requested that the court “order Google to deliver its data 

production to an independent third party capable of making an accurate copy and of 

establishing benchmarks for the data, such as measuring the quantity of data, the number 

of emails, and the number of pages produced. Once the copy is made, the Google data 

can be delivered to counsel for Negro forthwith for privilege review and production as 

counsel and Mr. Negro deem expedient.” 

 The motion to quash was finally heard on August 2, 2013. On August 19, the 

court issued an order denying the petition and directing production of the e-mail 

messages to SFL Data. In other respects the order substantially reiterated the tentative 

ruling. 

E. Google Motion to Vacate or Amend 

 A copy of the August 19 order was transmitted to Google, which filed a motion on 

September 3, 2013, to either vacate the order or amend it to provide “an alternative 

procedure that would permit [Google] to voluntarily disclose content consistent with the 

SCA and any order of this Court.” Google stated that it could “voluntarily disclose the 

content of a user’s email account to the user or the user’s representative when the lawful 

consent of the user is established through the user’s account by sending an email to 

Google from that account consenting to disclosure.” It argued, however, that the SCA 
7 

“does not provide a mechanism for private parties to compel disclosure of a user’s email 

via a subpoena or court order directed to Google. See 18 U.S.C. §§ 2702(a)(1); (b)(1)-

(8).” It challenged the August 19 order’s “judicial decree of user consent” when the 

record showed that Negro had “not consented at all.” Google requested that the 

discovery “apply only to the email address from which it was sent, and permit Google to 

disclose all reasonably available Gmail communications from that account for the 

relevant time period. Though Respondent’s subpoena only sought emails to and from 

fourteen individuals identified by name, see Fornasero Decl., Ex. A, Google cannot 

conclusively verify which emails addresses are associated with which persons and should 

not bear the burden of incorrectly producing an email due to a typographical or other 

error . . . . The Court and the parties to the litigation are in the best position to determine 

relevance.” 

 Google’s motion included a proposed order directing Negro to send an e-mail 

from his Gmail account in which he would state that he “expressly consent[ed]” to 

disclosure of the e-mails to his attorney. The order would recite that Google “agrees to 

produce the Gmail content designated in the consent e-mail to the party designated in the 

consent email.” 

F. Petition for Writ 

 On September 16, 2013, Negro initiated this proceeding by filing a petition for 

writ of mandate or prohibition setting aside the order denying his motion to quash and 

directing respondent court to enter a new order granting the motion. He also sought a 

stay of the order. 

 On October 2, this court ordered a stay of further proceedings on the August 19 

order and directed respondent to show cause why the relief sought in the petition should 

not be granted. As a result of the stay, Google’s motion to set aside or vacate the order 

denying the petition to quash was not heard. 
8 

DISCUSSION

 I. Stored Communications Act 

 The Act states that a provider of an “electronic communication service [ECS] . . . 

shall not knowingly divulge . . . the contents of a communication while in electronic 

storage by that service.” (18 U.S.C. § 2702(a)(1).) Similarly, a provider of “remote 

computing service” (RCS) generally “shall not knowingly divulge . . . the contents of any 

communication which is carried or maintained on that service.” (Id., § 2702(a)(2).) The 

scope of protection varies with the service being offered: A message stored in the course 

of ECS is protected from disclosure only during “electronic storage by that service” (id., 

§ 2702(a)(1)), which means “temporary, intermediate storage . . . incidental to . . . 

electronic transmission” of the message (id., § 2510(17)(A)), or “storage of such 

communication . . . for purposes of backup protection (id., § 2510(17)(B)). 

Communications stored in the course of RCS receive generally broader protection. (Id., § 

2702(a)(2).) 

 A provider is excused from these prohibitions when specified users give “lawful 

consent” to disclosure. (18 U.S.C., § 2702(b)(3).) For either service, consent is effective 

as to a given communication if given by “the originator or an addressee or intended 

recipient of such communication.” (Id., § 2702(b)(3).) In the case of RCS, consent is 

also effective when given by the “subscriber.” (Ibid.) 

 These provisions have generated a great deal of caselaw and commentary 

concerning the scope of, and limits on, the protections provided by the Act. Here, 

however, the parties have tacitly assumed that Negro’s Gmail messages are covered by 

the Act’s prohibitions, that Negro has the power to consent to their disclosure, and that in 

the absence of such consent Google would violate the Act by producing the material 

sought by Navalimpianti. 
9 

 Of course, insofar as any state law requires a person to violate federal law, it is 

preempted and unenforceable. (See Olszewski v. Scripps Health (2003) 30 Cal.4th 798, 

815 [“A state law actually conflicts with federal law ‘where it is impossible for a private 

party to comply with both state and federal requirements’ ”].) Therefore California’s 

discovery laws cannot be enforced in a way that compels Google to make disclosures 

violating the Act. The case therefore turns on the question whether Negro has effectively 

consented to disclosure of the messages here at issue. 

 II. Imputed Consent 

 In its order denying the motion to quash, respondent court made a “find[ing]” that 

“Negro consents to Google delivering and divulging the contents of his gmail account as 

described in this Order and pursuant to the Subpoena.” The court cited no evidence, and 

there appears to have been no evidence before it, that Negro had in fact consented to 

disclosure at that time. Instead the court seemed to impute consent to him, apparently 

concluding that such treatment was warranted by (1) this court’s discussion in O’Grady v. 

Superior Court (2006) 139 Cal.App.4th 1423 (O’Grady); (2) Negro’s failure to produce 

the e-mails himself; (3) the Florida court’s order authorizing Navalimpianti to subpoena 

the e-mails; and (4) Negro’s control over them. After alluding to these matters, the court 

wrote, “Because the documents are readily accessible from Google upon Petitioner’s 

consent, those documents are within his control. Therefore, resort to the electronic data 

bailee is justified. The concept of court ordered consent as an exception to the [SCA] 

applies here. This consent is sufficient pursuant to 18 USC 2701, et seq.” 

 The “lawful consent” exception to the prohibitions of the Act (18 U.S.C. § 

2702(b)(3)) is not satisfied by consent that is merely constructive, implied in law, or 

otherwise imputed to the user by a court. Cases applying the “prior consent” exceptions 

to the conceptually related anti-wiretapping statute (18 U.S.C. § 2511(c), (d)) have 

uniformly concluded that while consent under that statute may be “implied,” it is not 
10 

“constructive consent” (Williams v. Poulos (1st Cir. 1993) 11 F.3d 271, 281) but must be 

“ ‘ “consent in fact” ’ ” (United States v. Lanoue (1st Cir.1995) 71 F.3d 966, 981; GriggsRyan v. Smith (1st Cir.1990) 904 F.2d 112, 116-117; United States v. Amen (2d Cir. 

1987) 831 F.2d 373, 378; Walden v. City of Providence (D.R.I. 2007) 495 F.Supp.2d 245, 

262). We can see no reason to posit a less protective standard under the SCA; if 

anything, as we explain in the following part, the context in which the consent issue is 

likely to arise in cases like this one militates in favor of a narrower conception of consent, 

not a broader one. 

 Nor did anything we said in O’Grady contemplate that disclosure of stored 

messages by a service provider could be obtained on something less than the user’s actual 

consent. On the contrary, we said that where users are also parties to civil litigation, the 

court has the means to compel them to give their actual consent. Those observations 

came in response to a contention that the SCA cannot have been intended to categorically 

foreclose the discovery of e-mail messages in civil litigation. We observed that the Act 

was “not so restrictive” as this argument portrayed it to be: “Copies may still be sought 

from the intermediary [i.e., service provider] if the discovery can be brought within one 

of the statutory exceptions—most obviously, a disclosure with the consent of a party to 

the communication. (18 U.S.C. § 2702(b)(3).) Where a party to the communication is 

also a party to the litigation, it would seem within the power of a court to require his 

consent to disclosure on pain of discovery sanctions. [Citations.]” (O’Grady, supra, 139 

Cal.App.4th at p. 1446; italics added.)2

 2

 We had no occasion in O’Grady, and have none here, to consider whether there 

are circumstances in which a non-party might be compelled to consent to disclosure. 

Such a power was posited, or assumed, in In re Subpoena Duces Tecum to AOL, LLC

(E.D.Va.2008) 550 F.Supp.2d 606, 613, fn. 5 (AOL). But the users there—while not 

parties to the lawsuit in which the discovery was sought—were plaintiffs in a related qui 

tam action. (See id. at p. 608.) 
11 

 Nothing in these comments supports what Google has aptly labeled “consent by 

judicial fiat,” in which a court orders a service provider to disclose stored messages based 

on its own declaration, contrary to fact, that the user has consented to disclosure. Rather 

we anticipated that a user who is a party to litigation might be ordered to consent “on 

pain of discovery sanctions,” which implicitly contemplates the retention of a power to 

refuse, and thereby prevent discovery. Of course, such a refusal may be rear, coming as 

it does at the potential cost in this state—as well as in Florida—of monetary penalties, the 

adverse adjudication of specific issues, the striking of pleadings, the exclusion of 

evidence, or dismissal of the offending party’s pleading and entry of default. (See Code 

Civ. Proc., § 2023.030; Fla.R.Civ.P., rule 1.380(b)(2); Asper v. Maxy Aviation Services, 

L.C. (Fla.App. 2005) 915 So.2d 271, 273 [affirming terminating sanction against 

defendant based on refusal to consent to release of bank records].) But we did not mean 

to suggest, and did not suggest, that courts can bypass this step and simply declare that 

users have consented when in fact they have not. 

 The nearest thing we have found to the approach adopted by respondent court is 

the contention by the plaintiff in Suzlon Energy Ltd. v. Microsoft Corp. (9th Cir. 2011) 

671 F.3d 726, that the defendant in an Australian fraud suit had impliedly consented to 

the disclosure of stored e-mails because he had a duty to produce them under Australian 

law. (Id. at pp. 731.) The Ninth Circuit, understandably, “fail[ed] . . . to see the logic of 

[this] claim.” (Id. at p. 730.) Similarly, in Bower v. Bower (D. Mass. 2011) 808 

F.Supp.2d 348, 350-351, the court rejected a contention that a litigant who had left the 

country and suffered a default could be found to have consented to disclosure of her 

stored e-mail. 

 The order denying the motion to quash cannot be sustained on the basis of 

constructive consent, consent implied in law, or consent otherwise imputed to Negro. 
12 

 III. Implied-in-Fact Consent 

 In its preliminary opposition, Navalimpianti argued that the Act empowers courts 

to find implied consent. We have already rejected the premise that disclosure can be 

compelled on a theory of consent implied in law. A more difficult issue is presented by 

suggestions in two cases that consent might be implied in fact from a user’s conduct. 

(See Lazette v. Kulmatycki (N.D.Ohio 2013) 949 F.Supp.2d 748, 757; Flagg v. City of 

Detroit (E.D.Mich 2008) 252 F.R.D. 346, 365.) We question the soundness of such a 

construction of the Act, at least for purposes of compelling a provider to disclose stored 

messages.3

 However, we need not finally decide the issue because nothing in this record 

would support a finding that Negro impliedly consented to the disclosure of his e-mails. 

 3

 In neither of the cases just cited did the court’s comments on this point appear 

necessary to its decision. (See Lazette v. Kulmatycki, supra, 949 F.Supp.2d at p. 757 

[plaintiff’s conduct insufficient to establish implied consent]; Flagg, supra, 252 F.R.D. at 

p. 365 [“strong case” that city employees had impliedly consented to disclosure of text 

messages, but compelled production by provider rejected, and production ordered by city 

itself, on other grounds].) Both are further weakened by their uncritical reliance on 

decisions applying the “prior consent” exception to the federal anti-wiretapping statute. 

(See 18 U.S.C. § 2511(c), (d); Lazette v. Kulmatycki, supra, 949 F.Supp.2d at p. 757, 

citing Williams v. Poulos, supra, 11 F.3d 271, 281; Flagg v. City of Detroit, supra, 252 

F.R.D. at p. 365, citing Griffin v. City of Milwaukee (7th Cir.1996) 74 F.3d 824, 827; 

United States v. Rittweger (S.D.N.Y.2003) 258 F.Supp.2d 345, 354; and George v. 

Carusone (D.Conn. 1994) 849 F.Supp. 159, 164.) We find this reliance misplaced. The 

legislative history of the anti-wiretapping act explicitly contemplates that consent under 

that act “may be expressed or implied.” (Sen.Rep. No. 90-1097, 90th Cong., 2d Sess., 

reprinted in 1968 U.S.Code Cong. & Admin.News 2112, 2182.) No comparable 

suggestion appears in the legislative history of the SCA. (See Sen.Rep. No. 99-541, 2d 

Sess. (1986), reprinted in 1986 U.S.C.C.A.N. 3555; Off. of Technology Assessment, U.S. 

Cong., Electronic Surveillance and Civil Liberties (1985).) 

Further, the two situations are distinguishable. The prior-consent exception to the 

wiretapping ban will always arise in the context of adjudicating the legal consequences of 

completed past events. In contrast, the SCA’s “lawful consent” exception will commonly 

arise—as it did here—in the context of determining a service provider’s present 

obligation to disclose, or refuse to produce, stored messages. To recognize implied-infact consent in such a setting is to create uncertainties that can only be resolved safely, 
13 

 In the wiretapping context, a finding of implied-in-fact consent requires 

“ ‘circumstances indicating that the [party] knowingly agreed to the surveillance.’ . . . 

The circumstances . . . will vary from case to case, but . . . will ordinarily include 

language or acts which tend to prove (or disprove) that a party knows of, or assents to, 

encroachments on the routine expectation that conversations are private.” (Griggs-Ryan 

v. Smith, supra, 904 F.2d 112, 117}, quoting United States v. Amen, supra, 831 F.2d at 

p. 378.) The typical case involves the user’s continued use of a communication device or 

system after receiving notice that his or her communications may be intercepted. In the 

absence of such notice, “ ‘[t]he surrounding circumstances must convincingly show that 

the party knew about and consented to the interception in spite of the lack of formal 

notice or deficient formal notice.’ ” (Walden v. City of Providence, supra, 495 F.Supp.2d 

245, 262, quoting United States v. Lanoue, supra, 71 F.3d 966, 981; see William v. 

Poulos, supra, 11 F.3d 271, 281-282 [employee’s consent could not be inferred where he 

was not told of manner in which calls would be monitored, or that he himself would be 

monitored]; Berry v. Funk (D.C. Cir. 1998) 146 F.3d 1003, 1011 [claim that State 

Department official impliedly consented to monitoring presented issue of fact, where 

evidence might establish knowledge of capacity to monitor, but not that party to calls 

“was told that these specific conversations would be monitored”].) 

 Here there is no suggestion that Negro sent or received e-mails with the 

foreknowledge that they might not remain private. In that regard the case resembles 

Bower v. Bower, supra, 808 F.Supp.2d 348, 350-351, where the court considered whether 

 

from the provider’s perspective, by forcing the court to adjudicate them. But once the 

court’s power is invoked, there is no apparent reason for it not to directly address the 

issue whether the party-user should simply be ordered to give his or her express consent. 

A rule recognizing implied consent would thus seem destined to magnify litigation—if 

only by driving the provider into court along with the parties—for little, if any, 

discernible advantage. 
14 

a defendant who had not appeared in the action could be found to have impliedly 

consented to the disclosure of e-mails. The court found “nothing in [her] actions” from 

which it could “imply an intent to consent to the disclosure of her information.” (Id. at 

p. 351.) It distinguished cases where plaintiffs were held to have impliedly consented to 

disclosure by “affirmative participation in the judicial process.” (Ibid., citing Thayer v. 

Chiczewski (N.D.Ill. 2009) 2009 WL 2957317 at *7 [court “presumed” plaintiff’s consent 

where he had consented to disclosure of some e-mail and had put at issue matters likely 

to be reflected in stored messages] and Romano v. Steelcase Inc. (2010) 30 Misc.3d 426, 

428-34 [907 N.Y.S.2d 650, 652-657] [plaintiff ordered to provide executed consent 

where social website postings might contradict injury claims].) It also distinguished 

Flagg v. City of Detroit, supra, 352 F.R.D. at pages 363-365, as a case involving a 

“contractual or legal basis” for finding that use of an employer-provided messaging 

account amounted to consent. (Bower v. Bower, supra, 808 F.Supp.2d at p. 351.) 

 Here as in Bower v. Bower, supra, 808 F. Supp.2d 348, there is simply no 

evidence of conduct by Negro on which a finding of implied-in-fact consent might rest. 

Since his consent cannot be imputed in law, the trial court had no basis on which to 

conclude that he had given consent to disclosure. Its order denying the motion to quash, 

when made, directed Google to violate federal law, and was thus a manifest abuse of 

discretion. That was the state of the record when we issued our order to show cause; and 

had the record remained in that state, we would have issued a peremptory writ setting 

aside the order. 

 IV. Effect of Post-Order Developments 

A. Background 

 After we issued our order to show cause in this matter, Circuit Judge Thornton 

overruled the magistrate’s order in the Florida case and granted Navalimpianti’s motion 

for an order directing Negro to consent to disclosure. On October 10, 2013, Judge 
15 

Thornton issued an order directing Negro to send an e-mail to Google stating that he was 

the user of a specified address and that he consented to disclosure of messages between 

himself and 14 named persons or entities over a specified range of dates. The order also 

stated that the e-mails would not be made available to counsel for Navalimpianti until 

counsel for Negro had reviewed them and prepared a privilege log fairly describing any 

messages withheld on the basis of privilege or of being outside the scope of discovery. 

Although the attorneys appeared to agree at the hearing that the order would call for 

production to a designated third party, the order as issued did not specify to whom the 

initial production was to be made. 

 On October 14, Negro sent an e-mail as directed by the court, with a copy of the 

order attached, but adding the following language: “When you respond with the 

documents you are to only send them to my attorney, David Feingold” at a specified 

Gmail address. 

 On October 21 Negro filed a motion to stay the October 10 order in which his 

Florida counsel wrote, that “Mr. Negro does not consent to the release of his emails. 

Mr. Negro did forward the exact email which this Court ordered which stated that there 

was consent, but said email was compelled to be forwarded by this Court without Mr. 

Negro’s actual consent or approval. Mr. Negro simply forwarded the email out of 

concern for his punishment for failing to abide this Court’s order even though this matter 

is being appropriately handled by a California court.” Counsel asserted that if Google 

were to make production based on Negro’s compelled consent, it would be exposing 

itself to civil liability and criminal penalties. 

 On October 23, 2013, Judge Thornton issued an amended order directing Negro to 

send another e-mail to Google “as stated in this order” and without modifying the text. 

The order also provided that unless the California court directed otherwise, the e-mails 
16 

were to be produced to a named Florida magistrate by e-mail, whereupon she would 

make a copy and forward it to counsel for Negro “for privilege review.” 

 On October 23, 2013, Negro complied with this order, sending an e-mail to 

Google reiterating his consent to disclose the messages as described. 

B. Sufficiency of Showing 

 The first question concerning the foregoing post-order developments is whether 

they have been competently established for purposes of this proceeding. The answer is 

yes. 

 When Negro filed his petition in this proceeding, he alleged that the Florida court 

had not ordered him to consent to the disclosures sought by Navalimpianti. This was true 

at the time, but in its return Navalimpianti was able to allege that the court had now 

“twice ordered Negro” to send e-mails from his Gmail account consenting to the 

requested disclosures, and that he had done so. The texts of the orders and corresponding 

e-mails are set out at length in the body of the return. Copies of all four documents also 

appear in the appendix filed by Google. In the accompanying memorandum, Google 

acknowledges receipt of the e-mails, with attached orders. 

 In his reply to the returns, Negro does not deny or controvert Navalimpianti’s 

allegations concerning Judge Thornton’s post-petition actions. This fact alone permits us 

to treat those allegations as true. “In mandamus proceedings the answer of the defendant 

is accepted as true unless controverted by the plaintiff.” (Steiger v. Board of Sup’rs of 

Los Angeles County (1956) 143 Cal.App.2d 352, 359; see Most v. First Nat. Bank of San 

Diego (1966) 246 Cal.App.2d 425, 432 [“matters alleged in the return to an alternative 

writ of mandate which, if true, sufficiently show cause to deny the peremptory writ, are 

accepted as true unless controverted by the petitioner”]; Miller v. Eisenhower Medical 

Center (1980) 27 Cal.3d 614, 625, fn. 10 [“Plaintiff’s failure to file a replication to the 
17 

answer requires that all ultimate facts contained therein be accepted as true unless 

countervailed by proof.”].) 

 Indeed, while Negro’s reply brief addresses the legal significance of these events 

only obliquely, he acknowledges that they occurred. Accordingly, they have been 

competently established. 

C. Cognizability 

 Both Negro and Google emphasize that Negro’s court-ordered consent only 

occurred after respondent court had denied the motion to quash. The apparent 

implication is that these events have no bearing on this matter. A few cases may be 

understood to support such a view. (See Hallissy v. Superior Court (1988) 200 

Cal.App.3d 1038, 1042, fn. 2, disapproved on another point in Delaney v. Superior Court

(1990) 50 Cal.3d 785, 813, fn. 29; Mahoney v. Superior Court (1983) 142 Cal.App.3d 

937, 940, fn. 2; Lemelle v. Superior Court (1978) 77 Cal.App.3d 148, 166, fn. 5.) 

However the preponderance of authority holds that a court entertaining a proceeding in 

mandate may consider “all relevant evidence, including facts not existing until after the 

petition for writ of mandate was filed.” (Bruce v. Gregory (1967) 65 Cal.2d 666, 670-

671; McIntosh v. Aubry (1993) 14 Cal.App.4th 1576, 1592; see No Oil, Inc. v. City of Los 

Angeles (1974) 13 Cal.3d 68, 79, fn. 6; State Bd. of Education v. Honig (1993) 13 

Cal.App.4th 720, 742; Cooke v. Superior Court (1989) 213 Cal.App.3d 401, 407, 

disapproved on another point in County of San Diego v. State of California (1997) 15 

Cal.4th 68, 106, fn. 30; McCarthy v. Superior Court (1987) 191 Cal.App.3d 1023, 1031, 

fn. 3.) Such consideration is particularly apt where, as here, the effect of the additional 

evidence may be to validate an action that would otherwise have to be set aside. (See 

McIntosh v. Aubry, supra, 14 Cal.App.4th at p. 1592.) 

 Here, as we have already concluded, the order denying the petition to quash, when 

made, constituted a manifest abuse of discretion because it commanded Google to violate 
18 

the SCA. But if subsequent events have validated it—or more precisely, would sustain 

substantially the same order now—issuance of a writ setting the order aside would only 

generate delay and duplication of effort. Further, Google’s motion to modify or vacate 

the order denying the motion to quash remains unresolved. To blind ourselves to facts 

tending to validate the order under scrutiny would merely sow confusion and further 

protract this already over-complicated matter. 

 We will therefore take cognizance of the two e-mails sent by Negro in which he 

expressed consent, in compliance with Judge Thornton’s orders, to the disclosure sought 

by Navalimpianti. This brings us to what we view as the substantive linchpin of the case: 

whether these e-mails constitute the “lawful consent” contemplated by the SCA, and if 

so, whether compulsory process will lie to compel Google to produce the materials 

sought. The answer to both questions is yes. 

 V. Efficacy of Compelled Consent 

 Negro contends that his e-mailed consent to disclosure does not constitute the 

“lawful consent” contemplated by the Act because it was “judicially coerced.” He offers 

little syllogistic support for this contention; indeed much of his argument is a challenge to 

the power of respondent superior court to coerce his consent. But that is not what 

happened. The only effort to compel his actual consent came, quite properly, from the 

court with jurisdiction over the main action. It is the effect of that consent with which we 

must concern ourselves. 

 Insofar as Negro’s argument bears on this question it consists largely of superficial 

generalities. His most pertinent assertions are that “consent” generally contemplates 

“voluntary agreement,” a proposition for which he cites a law dictionary which he then 

paraphrases at some length for additional propositions on the general subject of consent. 

He rests no particular argument on any particular proposition, but simply offers what 
19 

amount to a number of definitions, tacitly inviting us to conclude that the consent given 

here fails to satisfy some or all of them. 

 Even if more cogently expressed, such an abstract definitional approach would be 

unsound. “[T]here is no one definition which inevitably attaches to the word consent, 

and courts which look for the meaning of the term are seeking something which does not 

exist. In several areas of the law the same facts constitute consent for one purpose but 

not for another. The term refers to a series of complex circumstances—a person knows 

certain things, has a certain power of choice, comes to a certain conclusion and manifests 

it in some way. Which of these factors must be present will depend on why consent is 

significant in the particular legal context at hand.” (Note, Consent, Liability and Guilt: A 

Study in Judicial Method (1955) 7 Stan. L.Rev. 507, 512-513, fns. omitted.) 

 In other words, what constitutes legally effective “consent” depends on the 

purposes served by that concept in the setting where the question arises. The SCA’s 

requirement of “lawful consent” is manifestly intended to invest users with the final say 

regarding disclosure of the contents of their stored messages while limiting the burdens 

placed on service providers by the Act. (See O’Grady, supra, 139 Cal.App.3d at 

pp. 1446-1447.) The latter interest is obviously diminished to the extent that the Act is 

applied in such a way as to embroil service providers in disputes between users and those 

seeking discovery over the legal sufficiency of a user’s conduct to constitute consent. As 

relevant here, this consideration militates against requiring a service provider to concern 

itself with a user’s ex post facto claim that his express consent was vitiated by some 

external cause. If the provider is given satisfactory proof of the user’s consent, it should 

be entitled to rely on it. Once users have consented to disclosure, they should not be able 

to embroil providers in disputes with discovering parties over the effectiveness of that 
20 

consent.4

 They may of course seek appropriate relief if there is a basis on which to 

conclude that their consent was ineffective. But they should not be permitted to do what 

Negro has done here, and threaten to hold a provider liable for disclosures to which they 

have explicitly consented. Certainly they should not be able to play two courts off 

against each other by contending that the “judicial coercion” practiced by one of them 

deprives the other of the power to enforce an otherwise lawful subpoena. 

 In any event we emphatically reject Negro’s claim that his consent is vitiated by 

“judicial coercion.” That court-ordered consent would be effective to satisfy the Act was 

implicit in O’Grady, supra, 139 Cal.App.4th at page 1446. At least two courts have 

actually resorted to such a measure. (Romano v. Steelcase, Inc., supra, 30 Misc.3d 426, 

435 [907 N.Y.S.2d 650, 657]; Al Noaimi v. Zaid (D. Kan. 2012) 2012 WL 4758048 

[ordering plaintiff to execute consent to be attached to subpoena directed to e-mail 

provider].) Others have endorsed this approach. (See AOL, supra, 550 F.Supp.2d 606, 

613, fn. 5 [court in underlying action “could order the Rigsbys to consent to AOL’s 

disclosing the contents of their e-mails under the pain of sanctions”]; Glazer v. Fireman’s 

Fund Ins. Co. (S.D.N.Y. 2012) 2012 WL 1197167, at *3 [court “need not determine” 

whether party’s communications were protected under Act because it could “simply 

direct that she consent to disclosure”].) 

 Nor is coerced consent in such circumstances a novel idea. As we noted in 

O’Grady, supra, 139 Cal.App.4th at page 1446, courts in a variety of other settings have 

compelled parties to consent to a third party’s disclosure of material where such consent 

 4

 Similar considerations inform our doubt that implied consent—even implied in 

fact—can constitute the “lawful consent” contemplated by the Act. (See fn. 3, ante.) If a 

party serves a subpoena together with a claim that the user impliedly consented to 

disclosure, the provider may have little choice but to go into court to litigate the claim. A 

far more straightforward solution—not implicating the provider—is for the discovering 

party to do what we suggested in O’Grady, and what Navalimpianti ultimately did here: 

secure the user’s express consent to disclosure. 
21 

was a prerequisite to its production. (Ibid., citing Miranda v. 21st Century Ins. Co.

(2004) 117 Cal.App.4th 913, 929 [affirming judgment of dismissal after claimant refused 

to comply with discovery order to sign authorization for release of medical records]; and 

Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1112 [sanctions 

available against deponent who refuses to comply with order requiring him to perform 

demonstration or reenactment of accident]; see also Doe v. United States (1988) 487 U.S. 

201 [order did not violate privilege against self-incrimination where it directed subject of 

grand jury investigation to consent to disclosure of foreign bank records on pain of 

contempt]; In re Grand Jury Proceedings, Yanagihara Grand Jury, Impanelled June 13, 

1988 (C.D. Cal. 1989) 709 F.Supp. 192, affirmed, In re Grand Jury Proceedings (9th Cir. 

1989) 873 F.2d 238 [witness directed to appear before grand jury and sign consent to 

disclosure of Swiss bank records]; Ulinsky v. Avignone (App. Div. 1977) 148 N.J.Super. 

250, 251 [372 A.2d 620, 621] [malicious prosecution plaintiff required, on pain of 

dismissal, to consent to disclosure of expunged records of prosecution]; Asper v. Maxy 

Aviation Services, L.C., supra, 915 So.2d 271, 273 [answer stricken and default entered 

based on defendant’s refusal to consent to release of bank records].) 

 More broadly, despite the general reluctance of courts to resort to coercive 

measures (see Blackburn v. Charnley (2004) 117 Cal.App.4th 758, 766; DVD Copy 

Control Ass’n, Inc. v. Kaleidescape, Inc. (2009) 176 Cal.App.4th 697, 726), they will in 

appropriate cases decree specific performance of a contract and, if necessary, resort to 

coercion to effectuate the decree, including the application of the contempt power to 

secure execution of a conveyance or other instrument. (E.g., Addiego v. Hill (1971) 17 

Cal.App.3d 453, 460 [trial court “properly exercised its powers to adjudge the defendants 

guilty of contempt in order to carry out the judgment for specific performance” requiring 

them to transfer stock certificates]; 76 Land & Water Co. v. Superior Court (1892) 93 

Cal. 139, 143 [“the willful refusal of a party to comply with the decree of a court of 
22 

competent jurisdiction, directing him to execute a conveyance, constitutes a contempt of 

such court, and may be punished as such”]; Burke v. Burke (Fla.App. 1976) 336 So.2d 

1237, 1238, citing Fla.R.Civ.P. 1.570.) If “judicial coercion” were enough to vitiate the 

resulting instrument, these powers would be illusory. We cannot entertain such a 

dramatic and disruptive departure from existing law without a far more compelling 

demonstration than Negro has attempted to make. 

 We have found no decision addressing the claim that the “judicial coercion” 

manifest in such circumstances deprives the resulting consent of legal effect. The most 

nearly analogous situation we have found appears in Matter of Christian & Potter 

Aluminum Co. (9th Cir. 1978) 584 F.2d 326, where 14 appellants challenged a 

bankruptcy judge’s disposition of their claims against a bankrupt corporation on the 

ground, as relevant here, that they had not effectively consented to summary disposition 

by the bankruptcy court. They acknowledged signing a settlement agreement expressing 

such consent, but they contended that the agreement was the product of duress, in that the 

court had issued a restraining order prohibiting them from engaging in various 

transactions with respect to certain disputed property. The court rejected this contention 

on multiple grounds, including that “only unlawful pressures on a party can constitute 

duress.”5

 (Id. at p. 333.) “Since the bankruptcy court had jurisdiction to issue the 

temporary stay while it determined whether or not it had summary jurisdiction over 

appellants, there was nothing unlawful about the issuance of the restraining order or its 

effect on appellants’ commercial operations. However coercive its effect, the order did 

not constitute duress. Thus, appellants’ stipulated consent to the bankruptcy court’s 

 5

 In fact many California cases speak of duress not in terms of “unlawful” conduct 

but rather “wrongful” conduct. The distinction does not appear significant to the 

reasoning in that case. Certainly it is not significant here, since nothing before us fits 

either characterization. 
23 

jurisdiction was valid and binding.” (Id. at p. 334; see Odorizzi v. Bloomfield School 

Dist. (1966) 246 Cal.App.2d 123, 128 [“a threat to take legal action is not unlawful 

unless the party making the threat knows the falsity of his claim”]; Marshall v. PackardBell Co. (1951) 106 Cal.App.2d 770, 774 [“it does not constitute duress or coercion to 

threaten to do that which a party has a legal right to do”].) 

 The simple fact is that Negro was not deprived of volition in this matter. He was 

presented with a choice between facilitating the discovery sought by Navalimpianti, or 

risking such sanctions as the Florida court might elect to impose. He seeks to have the 

best of both worlds by complying with the court’s order while denying that his decision 

to do so should be given legal effect. We reject this contention and hold that the consent 

expressly given by him pursuant to court order constituted “lawful consent” under the 

SCA. (§ 2702(b)(3).) 

 VI. Enforceability of Subpoena 

 Google asserts that even when a user expressly consents to disclosure, a civil 

subpoena is ineffectual to compel them to produce stored content because “[t]he SCA 

places email content,” when sought from a service provider, “outside the scope of civil 

discovery.” In other words, Google construes the Act to confer a blanket exemption or 

immunity on service providers against compulsory civil discovery process. The Act 

cannot properly be so construed. 

 It is true that, as we stated in O’Grady, the Act “makes no exception for civil 

discovery.” (O’Grady, supra, 139 Cal.App.4th at p. 1447, italics added; see Mintz v. 

Mark Bartelstein & Associates, Inc. (C.D. Cal. 2012) 885 F.Supp.2d 987, 991 [“The SCA 

does not contain an exception for civil discovery subpoenas.”].) But we did not suggest 

that it rendered civil discovery process impotent in all circumstances. Rather, we 

carefully limited our comments to disclosures that were otherwise prohibited by the Act, 

i.e., not within an exception, and particularly to those without the consent of the user. 
24 

(O’Grady, supra, 139 Cal.App.4th at p. 1441 [“[a] subpoena is not enforceable if 

compliance would violate the SCA”]; id. at p. 1446 [“Copies may still be sought from the 

intermediary if the discovery can be brought within one of the statutory exceptions—most 

obviously, a disclosure with the consent of a party to the communication.”] id. at p. 1447 

[“Congress could reasonably conclude that to permit civil discovery of stored messages 

from service providers without the consent of subscribers would provide an informational 

windfall to civil litigants at too great a cost to digital media and their users.”]; ibid. 

[“Congress could quite reasonably decide” that service provider, as “a kind of data bailee 

. . . should be legally disabled from disclosing such data in response to a civil subpoena 

without the subscriber’s consent”], all italics added.) 

 Nor do we newly perceive anything in the language of the Act suggesting that 

Congress intended to grant service providers a blanket immunity from obligations 

imposed by discovery laws. The Act does not declare civil subpoenas unenforceable; it 

does not mention them at all. As we have said, it preempts state discovery laws insofar 

as they would otherwise compel a service provider to violate the Act. It is this 

preemption that excuses service providers from complying with process seeking 

disclosures forbidden by the Act.6

 But nothing in the Act suggests that service providers 

remain shielded from state discovery laws when the disclosures sought are not forbidden 

by the Act. 

 In a slight variation on the claim of a blanket exemption, Google contends that the 

language of the Act makes the consent exception “permissive” and the provider’s 

disclosure under it “voluntary.” Thus the Act, in Google’s view, “allows, but does not 

require, disclosure by an electronic communications service provider,” so that “Google 

 6

 The similar results reached in federal cases presumably reflect the view that 

federal discovery laws must likewise give way to the Act under general principles of 

statutory construction. 
25 

may not be compelled by an order issued in a civil proceeding to disclose content, even 

with the user’s consent.” According to Google, the “text and title of the SCA could not 

be clearer” on this point. This reading of the Act, however, does not survive scrutiny. 

 Google relies, first, on the Act’s use of the word “may” to frame the exception for 

disclosure based on a user’s consent. (18 U.S.C. § 2702(b).) Perhaps recognizing the 

slenderness of this reed, Google relies largely on a cited opinion to make the argument. 

In In re Facebook, Inc. (N.D. Cal. 2012) 923 F.Supp.2d 1204, 1206 (Facebook), a 

magistrate judge appeared to adopt the proposition that a service provider is entitled to 

disregard a subpoena even if user consent has been given.7

 The court declared that 

“[u]nder the plain language of Section 2702, while consent may permit production by a 

provider, it may not require such a production.” (Ibid., fn. omitted, italics in original.) 

This may be literally true as far as it goes; certainly no one before us has suggested that a 

user’s consent, standing alone, obligates a provider to do anything. Neither does 18 

U.S.C. section 2702 by its terms impose any affirmative disclosure obligations on the 

provider.8

 But that observation begs the question that was actually before the court, and 

 7

 The court’s remarks on this point may have been dictum. The case arose from 

an attempt by a deceased user’s family members to subpoena her online postings in the 

hope of casting doubt on suggestions in an English coroner’s inquest that her death was 

self-inflicted. It was apparently undisputed that the user had not consented to disclosure. 

Now of course she could not do so. In apparent sympathy to the family’s position, the 

service provider suggested that the court make “an order establishing Applicants’ 

authority to tender consent on [their decedent’s] behalf and compelling disclosure of [her] 

Facebook records.” (Facebook, supra, 923 F.Supp.2d at p. 1205.) The court’s reasons 

for rejecting this apparent invitation are far from clear, but it was apparently in this 

context that the court propounded the views for which the opinion is cited by Google. 

8

 On the other hand, the idea that a consenting user has no right to disclosure 

seems somewhat at odds with the suggestion in some cases that users can be directly 

compelled to produce stored communications in a service provider’s possession on the 

rationale that they are within the user’s “ ‘possession, custody, or control’ ” because “he 

has ‘the legal right to obtain [these] documents on demand’ from [the provider].” (Mintz 

v. Mark Bartelstein & Associates, Inc., supra, 885 F.Supp.2d 987, 994, quoting United 
26 

is now before this court: not whether consent by itself requires production, or even 

whether the Act coupled with consent requires production, but whether a subpoena can 

require production when the Act, due to user consent, permits such production. Insofar 

as Facebook can be understood to address this question, its treatment rests entirely on the 

premise that “ ‘ “may” . . . usually implies some degree of discretion’ ” (Facebook, 

supra, 923 F.Supp.2d at p. 1206, fn. 7, quoting United States v. Rodgers (1983) 461 U.S. 

677, 706), from which the court deduced that the Act vests providers with the power to 

refuse even those disclosures that would not violate it. 

 This treatment places much more weight on a very small word than it is designed 

to bear. It is certainly true that “may” generally conveys permission, and that when used 

in contradistinction to “shall” it implies a discretionary power or privilege, as 

distinguished from a mandatory duty. (See Hogya v. Superior Court (1977) 75 

Cal.App.3d 122, 133; Tarrant Bell Property LLC v. Superior Court (2011) 51 Cal.4th 

538, 542.) This was exactly the context in which the Supreme Court made the remarks 

quoted in Facebook: The question was whether a statutorily conferred power to decree a 

sale was mandatory or discretionary, and in adopting the latter reading the court relied in 

part on the statute’s use of “may” where a predecessor statute had used “shall.” (United 

States v. Rodgers, supra, 461 U.S. at p. 706, quoted in Facebook, supra, 923 F.Supp.2d at 

p. 1206, fn. 7.) 

 

States v. Int’l Union of Petroleum & Indus. Workers (9th Cir.1989) 870 F.2d 1450, 1452.) 

If the provider is entitled not to honor such a demand, as Google contends, it would seem 

to follow that a user cannot be compelled to produce them, but only to ask for them. 

Google has expressed a willingness to honor such requests, but that hardly bespeaks a 

“ ‘legal right’ ” to obtain them “ ‘on demand.’ ” We have no occasion to resolve this 

tension, but if it is ultimately resolved in favor of Google’s interpretation it will make 

compulsory process, such as the instant subpoena, the only way to ensure production of 

stored messages in civil litigation. 
27 

 This approach simply does not work in the present context, where the “may” in 

question is juxtaposed not with a “shall”—real or hypothesized—but with an earlier 

“shall not”—specifically, the Act’s declaration that a service provider “shall not” 

knowingly disclose protected materials. (18 U.S.C. § 2702(a).) The subdivision where 

“may” appears is framed not as a grant of discretionary power or as the imposition of a 

mandatory duty but as a special exception to a general prohibition. In such a context all 

“may” means is that the actor is excused from the duty, liability, or disability otherwise 

imposed by the prohibition. Stating that the actor “may” engage in the otherwise 

proscribed conduct is a natural way—indeed the most natural way—to express such an 

exception. Thus a traffic law might declare that a driver shall not proceed against a red 

light, but may proceed, under stated conditions, to make a right turn. This means only 

that when the stated conditions are present, the driver is relieved of the obligation to wait 

for a green light. It does not exempt the driver from duties arising under other laws, such 

as not to obstruct traffic, or to get out of the way of emergency vehicles. The use of 

“may” in such a context can connote that the actor is not obliged in all cases to perform 

the contemplated action; but it has no tendency, by itself, to excuse the actor from 

obligations or liabilities arising from other sources. 

 Another federal magistrate judge has observed that “there should be a clear 

expression of congressional intent before relevant information essential to the fair 

resolution of a lawsuit will be deemed absolutely and categorically exempt from 

discovery and not subject to the powers of the court under Rule 26.” (ICG 

Communications, Inc. v. Allegiance Telecom (N.D. Cal. 2002) 211 F.R.D. 610, 614; fn. 

omitted.) Congress’s use of the word “may” to frame an exception to the Act’s general 

prohibition on disclosure is not such a “clear expression of . . . intent” as will justify a 

reading of the Act that categorically immunizes service providers against compulsory 
28 

civil process where the disclosure sought is excepted on other grounds from the 

protections afforded by the Act. 

 Google also cites the Act’s headings as evidence that disclosure under the consent 

exception is “voluntary.” As codified, the section containing the consent exception is 

entitled “Voluntary disclosure of customer communications or records” (18 U.S.C. 

§ 2702), while the section following it—which provides for disclosure at the behest of 

various government actors—is entitled “Required disclosure of customer 

communications or records” (Id., § 2703). We can attach no significance to these 

headings, for they are the creatures not of Congress, but of the codifiers. In the Act as 

adopted, the heading for 18 U.S.C. section 2702 was “Disclosure of contents,” and the 

heading for 18 U.S.C. section 2703 was “Requirements for governmental access.” (Pub. 

Law 99-508, 1986 HR 4952, as approved Oct. 21, 1986.) Statutory headings are rarely 

given much weight to begin with, but a heading is not evidence of congressional intent if 

it “was not part of the statute as passed by Congress . . . , but was added subsequent to 

enactment by those responsible for codification of the legislation.” (United States v. 

Castro (11th Cir. 1988) 837 F.2d 441, 442, fn. 1.) 

 Even if the codifiers’ headings were evidence of congressional intent, they would 

provide little guidance here. The codifiers apparently used the term “voluntary” in the 

heading to 18 U.S.C. section 2702 for two purposes. One was to convey the sense that an 

involuntary disclosure will not subject a provider to liability under the Act. This intent is 

more narrowly expressed in the text, which only prohibits service providers from 

“knowingly” divulging protected information. (Id., § 2702(a).) The second function of 

“voluntary” is to capture a perceived difference in the intended effect of the Act as 

between disclosures under 18 U.S.C. section 2702(b), including those based on user 

consent, and disclosures under 18 U.S.C. section 2703. The codifiers apparently 

concluded that the Act did not obligate a provider to make disclosure authorized by the 
29 

former section, but did obligate them to make disclosures authorized by the latter. We 

have no occasion to study the matter further, for as we have already said, Congress’s 

intent to limit the new, additional obligations the Act imposed on service providers does 

not translate into an intent to immunize them from obligations arising under other laws. 

 A seemingly contrary reading may be attributed to a case relied upon by Google, 

in which the court described other cases as “quash[ing] . . . subpoenas on the basis that 

“the SCA forbids an e-mail provider from producing its customers’ personal e-mails in a 

civil case.” (Special Markets Ins. Consultants, Inc. v. Lynch (N.D.Ill. 2012) 2012 WL 

1565348, at p. *2; italics added.) We concur in this statement if it is understood to refer 

only to disclosures not otherwise excepted from the Act’s prohibitions. But where a 

disclosure falls within an exception, nothing in the Act forbids it; on the contrary, by 

virtue of the exception, the Act permits it. None of the four cases cited by the court 

supports the broad rule attributed to them. In two of them, as in the citing case itself, no 

exception to the Act’s prohibitions had been invoked by the discovering party; nor do any 

of these three cases mention user consent. (See ibid.; J. T. Shannon Lumber Co.

(N.D.Miss. 2008) 2008 U.S. Dist. LEXIS 104966; Chasten v. Franklin (N.D. Cal. 2010) 

2010 WL 4065606, *2.) We have already mentioned the other two cases. In AOL, supra, 

550 F.Supp.2d 606, 613, footnote 5, the court upheld a magistrate’s refusal to enforce a 

subpoena, but observed that another court could “order the [users] to consent to AOL’s 

disclosing the contents of their e-mails under the pain of sanctions.” And in Bower v. 

Bower, supra, 808 F.Supp.2d 348, 350-351, the court declined to rule that an absent party 

could be “deemed” to have consented to disclosure, but went on to recognize that under a 

different procedure she might be ordered to do so and subjected to sanctions if she 

refused. 

 In sum, we find no sound basis for the proposition that the Act empowers service 

providers to defy civil subpoenas seeking discovery of materials that are excepted from 
30 

the Act’s prohibitions on disclosure. Insofar as the Act permits a given disclosure, it 

permits a court to compel that disclosure under state law. It follows that when a user has 

expressly consented to disclosure, the Act does not prevent enforcement of a subpoena 

seeking materials in conformity with the consent given. 

 VII. Modifications to Order

 We conclude that although there was insufficient basis to compel Google’s 

compliance with the subpoena at the time the court denied the motion to quash, 

subsequent events have taken the contemplated disclosures outside the SCA and will 

indeed permit the subpoena to be enforced. However, the production can go no farther 

than the consent Negro has given. This fact will necessitate some modifications to the 

order under scrutiny. Additional modifications are warranted in light of Google’s 

representations concerning its own capabilities and limitations. We also believe certain 

technical modifications are advisable to simplify future issues of authentication and chain 

of custody. 

 In addition, Negro has raised various other objections to this discovery at various 

times. The order denying his motion to quash declared that “[n]o objections other than 

privilege” were to be asserted, and directed counsel for Negro to produce “any Data that 

are not claimed to be privileged.” We find this provision troubling in two respects. First 

it appears to suppose that Negro has forfeited all other objections. That may well be a 

sound conclusion, but it would seem to require more explanation than appears in the 

order under review. Second, Google has stated that it is unable to filter e-mails based on 

the names of Negro’s correspondents—which is the only limitation on content set forth in 

the subpoena. It must therefore apparently produce all messages within a specified range 

of dates. This raises the likelihood that the materials produced will include messages 

from persons unknown, not named in the subpoena and quite possibly having no 

connection whatever with the present controversy. At a minimum, then, the materials 
31 

produced by Google must be filtered after production to eliminate correspondents not 

named in the subpoena. Because such matters can almost certainly be better administered 

in the court hosting the underlying litigation, we have adopted the approach of Judge 

Thompson’s last order and directed that production be made to the magistrate in the 

Florida court. 

 Accordingly, unless the parties agree otherwise, or intervening circumstances 

compellingly warrant additional modifications, the motion to quash should be denied in 

substantially the following form: “Petitioner’s motion to quash the subpoena directed to 

Google, Inc., is denied. In accordance with petitioner’s consent to disclosure as 

expressed in e-mails dated October 14 and 23, 2013, Google is directed to produce, 

within 15 days from the date of this order, all messages bearing dates between May 31, 

2009 and July 1, 2010 from the account specified in those e-mails. Google is directed to 

copy the messages to one or more CDs or DVDs. Google is further directed to mail the 

disk or disks thus prepared to Magistrate Judge Elizabeth Schwabedissen at an address to 

be furnished by counsel for Navalimpianti. Google will promptly notify counsel for 

Navalimpianti when the disk is mailed, and counsel will notify counsel for Negro.” 

DISPOSITION

 Let a peremptory writ issue directing respondent court to set aside its order of 

August 19, 2013, and issue a new order in accordance with part VII of this opinion. 

 
32 

 ______________________________________ 

 RUSHING, P.J. 

WE CONCUR: 

____________________________________ 

PREMO, J. 

____________________________________ 

MÁRQUEZ, J. 
33 

Trial Court: Santa Clara County Superior Court 

 Court No.: CV239634 

Trial Judge: The Honorable 

 James L. Stoelker 

Attorneys for Petitioner Adleson, Hess & Kelly 

Matteo Negro: 

Jeffrey A. Baruh 

Joanne M. Wendell 

 

Attorneys for Real Party in Interest Idell & Seitel 

Navalimpianti USA, Inc.: 

 Richard J. Idell 

 Ory B. Sandel 

 

 Gunster, Yoakley & Stewart 

 Joseph L. Raia 

Attorneys for Real Parties in Interest Perkins Coie 

Google, Inc.: 

 Timothy L. Alger 

 Kevan Fornasero