Suzlon Energy v. Microsoft Corporation

A foreign citizen is a “person” whose emails are protected by the statutory framework of §§ 2702(a)(1), 2510(15), § 2510(13) of the Electronic Communications Privacy Act, therefore an email service provider is not compelled to produce documents under a § 1782 order (an order to obtain evidence for use in a foreign or international tribunal).

Suzlon Energy Ltd. sought discovery of the emails of an Indian citizen from Microsoft Corp., a US based email service provider, for use in an Australian court proceeding. Under 28 U.S.C § 1782, a party may petition a district court for discovery for use in a foreign proceeding. The district court granted Microsoft’s motion to quash Suzlon’s § 1782 petition and refused Suzlon the emails. The Ninth Circuit held that despite the numerous statutory exceptions to the prohibition on an email service provider from divulging the contents of an electronic communication under § 2702(a)(1) of the Electronic Communications Privacy Act (ECPA), Congress provided no exceptions for citizenship, and the plain language of § 2510(13) of the ECPA protects “any person” which includes foreign citizens. AFFIRMED.