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Knaggs v. Yahoo! Inc.

United States District Court, N.D. California

July 20, 2016

RUSSELL KNAGGS, Petitioner,
v.
YAHOO! INC., Respondent.

          ORDER RE: APPLICATION AND MOTION PURSUANT TO 28 U.S.C. § 1782 FOR DISCOVERY FOR USE IN A FOREIGN PROCEEDING RE: DKT. NOS. 1, 13

          MARIA-ELENA JAMES United States Magistrate Judge

         INTRODUCTION

         Before the Court is Petitioner Russell Knaggs's (“Petitioner”) Motion under 28 U.S.C. § 1782 for an order directing Respondent Yahoo! Inc. (“Yahoo”) to submit to a deposition pursuant to Federal Rule of Civil Procedure 30(b)(6) and to produce documents for use in a foreign proceeding. Mot., Dkt. No. 13; see also Initial 28 U.S.C. § 1782 Appl. (“Appl.”), Dkt. No. 1. Having considered the parties' papers, the record in this matter, and the relevant legal authority, the Court now issues the following Order.

         BACKGROUND

         Petitioner is a British national who is currently serving a 20 year prison sentence in England for conspiracy to import drugs into the United Kingdom (“UK”). Appl. at 2-3; Mot. at 4. At trial on the conspiracy charge, the Crown (i.e., the Prosecution) presented evidence obtained from Yahoo, which is based in Sunnyvale, California. Appl. at 2; Mot. at 4. This evidence allegedly showed Petitioner and his alleged co-conspirators communicating about and organizing their conspiracy through a single Yahoo email account by viewing and editing drafts of emails in the email account (as opposed to sending emails/messages to each other). Id. (both). Petitioner also alleges the evidence included emails that had been deleted from the email account. Mot. at 4.

         Petitioner is in the process of appealing his criminal conviction, and one of the grounds for his appeal is his belief that the Yahoo-based evidence used against him was gathered by Yahoo through a method that violated or circumvented British law. Id.; Appl. at 1-2, 4, 16. Specifically, Petitioner contends the information provided to the Crown by Yahoo may have been the result of real-time monitoring and/or bulk data gathering by Yahoo. Mot. at 4. The UK Court has approved Petitioner's bid to pursue an appeal based on questions regarding the Yahoo-originated evidence. Appl. at 1-2; Mot. at 4. Petitioner now argues he needs “limited fact discovery to establish or disprove this basis for evidentiary suppression” by gaining information about the method Yahoo used to gather data to provide to law enforcement. Mot. at 4-5.

         The evidence Petitioner alleges Yahoo collected unlawfully includes four “snapshots” of content from the email account used in the alleged conspiracy and email headers for emails “maintained in the account.” Appl. at 2; May 22, 2014 Statement of Michele Lai[1] (“2014 Lai Stmt.”) ¶¶ 4-6, Dkt. No. 1-1 at ECF pgs. 5-8. According to Yahoo, “snapshots” are “file[s] created by [Yahoo's] proprietary tool used to capture a copy of all the contents of a user's Yahoo Mail account at a given moment in time.” Opp'n at 3 (quotation omitted). Yahoo explains that when one of its email users composes an email, a draft is “autosaved” (automatically saved by the email system without the user actively saving a copy of the email) on the Yahoo email server, under an email “Folder” titled “drafts.” Id. As the user updates or changes the draft email, the new version of the draft email is auto-saved on the email server at “periodic intervals.” Id. However, previous versions of the draft, while no longer appearing in the “drafts” folder, still remain on the email server (though invisible to the user) for an unknown period of time. Id. This happens because there is a multistep process that must be completed before the previous drafts are permanently deleted from the email server system-and the user updating, changing, or even deleting the draft is only the first step in the deletion process. Id. at 3-4. Even if the user deletes his or her draft email, the previous versions of the draft are not automatically removed from the email system; the user cannot see previous versions of the draft in their email account, but the previous versions remain in the email system and on Yahoo's servers until the entire removal process is complete. Id. And until the entire removal process is complete, the draft can still be captured in the account snapshots created by Yahoo. Id. at 4. A majority of the messages included in the snapshots provided by Yahoo, and used by the Prosecution at Petitioner's trial, included messages that had, at some point, been in the draft folder of the account used by Petitioner and his alleged co-conspirators. Id.

         After informal attempts to gather information about the data-gathering process from Yahoo, on November 16, 2015, Petitioner filed his Application pursuant to 28 U.S.C. § 1782, asking this Court compel discovery from Yahoo. Appl. at 1-4. Yahoo had earlier provided Petitioner with a “custodian of records declaration, ” which Petitioner contends “did not respond to or address the most critical issues identified in [his] request.” Id. at 3. Before filing his Application, Petitioner requested that Yahoo voluntarily agree to depositions, but Yahoo refused, offering instead to provide an additional declaration. Id. at 4. Petitioner originally sought to depose three knowledgeable individuals at Yahoo: Yahoo's Global Compliance Director, its Direct of Engineering, and its Back-End Mail Principal Engineer. Id. at 13; Mot. at 6. However, after filing his Application, Petitioner and Yahoo met and conferred, and Yahoo proposed providing the information sought via written interrogatories. Mot. at 6. Through a series of stipulations, the parties agreed to conduct discovery through interrogatories as well as various timing extensions. See Dkt. Nos. 5, 7, 9, 11.

         On May 25, 2016, Petitioner filed his Motion to Compel, asking the Court to order Yahoo to produce one employee of the company's choosing (also labeled Yahoo's “person most qualified”) for a half-day deposition focused on the subjects of the previous interrogatories, i.e. Yahoo data-gathering methods that are relevant to Petitioner's case. Mot. at 1. Petitioner also requests an Order requiring Yahoo to produce documents responsive to Interrogatory Request No. 14 and information listed in Petitioner's “expert 'Wish List'” concerning Yahoo's data-gathering methods. Appl. at 5; Mot. at 1. He contends that a deposition is now “called for” because (1) Yahoo has offered “evolving explanations” over time about how it retains deleted information in user email accounts; (2) “in its recent written responses, Yahoo has insulated the sources of its information from scrutiny by the way it has fashioned its responses; and (3) Yahoo's explanations are not clear and need to be clarified.” Mot. at 3.

         Although Petitioner did not provide the Court with all the declarations, statements, and interrogatories obtained from Yahoo, he did include the May 22, 2014 and July 1, 2015 written statements of Michele Chan (formerly Lai), and the October 27, 2011 statement of Deputy Compliance Manager Emily Nick (Nick Stmt., Dkt. No. 1-1 at ECF pgs. 15-17). Petitioner contends these statements provide different and conflicting descriptions of the email deletion and removal process and the preservation and data-gathering process used to make the snapshots. Mot. at 5. Chan, for example, in her July 1, 2015 Statement, changed her explanation of how the data-collection works after having reviewed “company documentation” about the Yahoo email deletion process and the proprietary tools that assist in preservation and data-gathering for snapshots. Specifically, according to her May 22, 2014 statement:

[Y]ahoo only has access to those communications retained by the subscriber, including those communications that are present in a subscriber's email 'draft' and' trash' folders. If a user deletes a communication from his or her account, the communication becomes inaccessible to the proprietary tools Yahoo uses to gather communications data in response to preservation requests and search warrants. . . . [C]ommunications that a user has not retained in his or her Mail account are not accessible to the proprietary tool that Yahoo Custodians of Record use to gather communications data in response to preservation requests and search warrants. Accordingly, a snapshot will never contain a communication that was not present in a user's account at the time the snapshot was taken. . . . [Therefore, Yahoo] could not have and did not produce any communications from [Petitioner's] account . . . that had been completely deleted from the account by the user.

2014 Lai Stmt. ¶¶ 4-5, 9. She also states Yahoo “does backup communications . . . [which] are only accessible for the purpose of recovering user account content, at the request of a user, and are not accessible to the proprietary tools Yahoo uses to gather communications data in response to legal process.” Id. at 6 n.1. However, Chan's July 1, 2015 statement explains:

[T]he deletion of an email is a multi-step process, and the removal of an email from what is visible to a user (i.e. 'the mailbox view') is a beginning step. Removal of the message from the 'mail server' where the user's mailbox data resides requires additional steps. The full details of the deletion process and timelines are beyond my knowledge, but the fact that an email can be deleted by a user and still remain on the mail server and associated with a user's account for some period of time resolves the apparent discrepancy in this matter. That is, Yahoo's proprietary tool was used to retrieve all the data for [Petitioner's e-mail account] that was present on a mail server, even though all of that data was not visible to the user because some had previously been deleted.

July 1, 2015 Statement of Michele Lai (“2015 Lai Stmt.”) ¶ 5, Dkt. No. 1-1 at ECF pgs. 9-12.

         Yahoo alleges the differences in Michele Lai's statements were the result of her clarifying her initial statement in her later statement. Opp'n at 11-12. Yahoo asserts that, “while accurate as a general matter, [Lai's 2014 Statement and Nick's Statement] did not expressly describe the preservation of auto-save drafts of emails that have been deleted from the user's mailbox view, but still remained on the Yahoo mail servers for a period of time, ” as such emails “would be [and were] captured in a snapshot.” Yahoo's Resps. to Interrogs., Dkt. No. 13-1 at ECF pg. 31. Yahoo says its auto-save process is “automatic, ” and the email “purging process” “is initiated only when it is determined through Yahoo's automated proprietary processes that enough activity has occurred within the email account to reach the threshold for action.” Id. at ECF pgs. 52-53.

         Petitioner's computer hardware and software expert, Mark Abramson, who indicates he has expertise in computer and data forensics, cybercrime analysis, cyber terrorism prevention, and Internet intrusion detection, takes issue with Yahoo's version of events. May 25, 2016 Declaration of Mark Abramson (“May 25 Abramson Decl.”), Dkt. No. 13-1 at ECF pgs. 65-67); June 30, 2016 Declaration of Mark Abramson (“June 30 Abramson Decl.”), Dkt. No. 24-1 at ECF pg. 4; Abramson Expert Report (“Abramson Rpt.”), Dkt. No. 24-1 at ECF pgs. 6-14. Abramson notes Yahoo “continuously changes its story” and the information it provides “does not make sense” and “is not a technical explanation of the associated events that led up to Yahoo providing the information to law enforcement.” Abramson Rpt. at 4. With regard to Yahoo's “snapshot” and its process of “retriev[ing emails] from the servers because their auto-save function systematically preserved edits made over time, ” Abramson says the descriptions Yahoo gives of its auto-save feature are inconsistent, contradictory, and furthermore “do[] not align with [Abramson's] understanding of such programs.” May 25 Abramson Decl. ¶¶ 4-7. Additionally, Abramson contends Yahoo's statements “do not in fact agree with common technical principles. The timing of e-mail data saved between 2 minutes and several seconds is not consistent.” Abramson Rpt. at 8. He asserts that “[a] more plausible explanation for the e-mail information provided to law enforcement is that the e-mail account of Mr. Knagg's [sic] was under surveillance and through the immediate efforts of surveillance, Yahoo was able to capture the email information and provide it to law enforcement.” Id.

         Yahoo, for its part, contends it has “quickly and voluntarily” explained, in its answers to the 21 interrogatories propounded by Petitioner, “(1) how it collected the evidence and (2) why the draft emails that users had deleted remained on Yahoo's servers for some period of time until finally purged from the servers, albeit not visible to users in their mailboxes, ” and that Petitioner only makes his latest Motion because he is “[u]nhappy with the truth-because Yahoo's answers do not support his argument on appeal[.]” Opp'n at 1. It further contends “Petitioner's proposed document requests and deposition are a baseless fishing expedition into aspects of Yahoo's email system that have nothing to do with the ordinary means by which Yahoo collected Petitioner's information.” Id. at 2. Among other things, Yahoo reiterates its process of capturing the snapshots was not done in real time but rather through auto-save drafts that captured copies of messages at various points while the drafts were stored on the Yahoo mail server through its proprietary snapshot tool. Id. at 3-4. It also rejects Petitioner's argument that it collected this information as part of a surveillance program, calling this accusation “baseless.” Id. at 4.

         Finally, Yahoo submits another declaration by Michele Chan filed in support of Yahoo's Opposition (“Chan Decl., ” Dkt. No. 15-2); the declaration responds to Abramson's opinion about the irregularities in the frequency of the auto-save feature (id. ¶¶ 2-3). Chan explains that “based on communications with others who have reviewed relevant documentation and have personal knowledge and expertise[, ]” there are “several factors [that] could result in drafts being saved more or less frequently.” Id. ¶¶ 1-2. She states “the interval of time between auto-save draft messages” can be (1) “a function of the client being used to access a mail account, e.g., web-based desktop access or IMAP/POP email client access”; (2) affected “if an account was being accessed from more than one client at a time” and “saved more frequently and thus at apparently irregular intervals”; (3) relatedly, “if a user was manually saving drafts, drafts may have been saved more frequently and thus at apparently irregular intervals”; and (4) as “auto-save drafts are only saved while a message is being composed[, ] [i]f a user stopped composing and returned to the draft at a later time, the auto-saved drafts of that message would be at least as far apart in time as the break in message composition.” Id. ¶ 3.

         Petitioner requests an Order compelling: (1) a half-day 30(b)(6) deposition covering four topics and (2) the production of documents responsive to Interrogatory Request No. 14[2] ...


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