In Sihler v. Microsoft Corp., No. 2:24-mc-00062-TL (W.D. Wash. Jan. 15, 2025), Washington District Judge Tana Lin denied Respondent Microsoft’s Motion for Reconsideration of the order to produce Skype chats from a related Federal litigation, finding that Respondent failed to raise the issue in a timely manner and was not diligent in processing the consent form.

Case Discussion and Judge’s Ruling

The Petitioners in this case subpoenaed Microsoft for Skype chats belonging to David Flynn, who had provided a declaration in related litigation consenting to the production of his chats with specific individuals. Flynn also subsequently submitted Microsoft’s standard consent verification form, initially with limitations on consent and then without. The Court’s prior order compelling production was based on the understanding that Flynn had successfully completed Microsoft’s consent form without alterations, thus resolving any Electronic Communications Privacy Act (ECPA) concerns, leading to Microsoft’s Motion for Reconsideration.

Microsoft argued that “unbeknownst to the Court,” Flynn’s second consent form “failed [Respondent’s] verification process” because “the information provided in the verification form was incomplete or did not match the registration data in the account.” Microsoft contended that without verified consent, disclosure would violate ECPA.

Judge Lin began her order by stating: “’Motions for reconsideration are disfavored.’…Such motions must be denied absent a showing of ‘manifest error in the prior ruling or … new facts or legal authority which could not have been brought to [the Court’s] attention earlier with reasonable diligence.’…Motions for reconsideration should be granted only in ‘highly unusual circumstances.’”

Continuing, she said: “As an initial matter, the Court finds that Respondent failed to raise this issue in a timely manner. Petitioners rightly emphasize that Flynn’s first verification form was provided to Respondent on October 11, 2024, two weeks before Respondent’s response to Petitioners’ motion was due, yet Respondent did not verify the information in a timely manner…Instead, Respondent flagged just one problem with the form (i.e., Flynn’s alteration of the form to limit consent) without reviewing the form to see if there were any other problems (e.g., form answers that did not match Respondent’s information). Then, upon receiving Flynn’s second form on October 24, 2024, Respondent was somehow unable to verify the contents of the form (which essentially contains just five pieces of information) until around November 21, 2024, when its counsel notified Petitioners of Flynn’s failed process…This course of behavior suggests that Respondent was not diligent in processing Flynn’s verification form and notifying Petitioners of any issues, thus resulting in the Court’s Order based on outdated information and the instant motion. On this ground alone, the motion could be denied as based on ‘evidence … that could reasonably have been raised earlier in the litigation.’”

While noting that “ECPA generally prohibits a service provider from disclosing the contents of an account holder’s communications”, Judge Lin stated: “However, the service provider may disclose the communications if one of several exceptions applies…Relevant here, one such exception is that a provider may disclose the communications ‘with the lawful consent of the originator or an addressee or intended recipient of such communication, or the subscriber in the case of remote computing service.’”

She added, noting “The Parties dispute what is required to show ‘lawful consent’ under ECPA.”: “The Court does not purport to create a rule or standard here. But wherever the floor may ultimately be set for proving lawful consent under ECPA, the Court finds that a sufficient showing has been made here. Flynn’s declaration identifies himself and his Skype account, explicitly consents to Respondent’s disclosure of his communications (albeit limited to communication with only certain individuals/accounts), and is authored under penalty of perjury…Flynn later twice completed Respondent’s verification form, where he again identified himself and his Skype account, explicitly consented to Respondent’s disclosure of his communications (first with limitations, then with none), and answered under penalty of perjury…On the form, Flynn answered additional questions, including approximate date of account creation; email address provided at time of creation; country selected at time of registration; approximate date of last login; and up to three contacts from his contacts list…Petitioners also supply Skype screenshots and chats provided by Flynn—further evidence that Flynn is the actual account holder.”

Citing In re Akhmedova, a case where a Court rejected Google’s argument that its “verified-consent” process was the only acceptable means of consent under ECPA, Judge Lin stated: “Respondent argues that ‘[t]he failure to provide verified consent is no small matter’ and that ‘[its] consent verification process ensures that the actual accountholder provides consent,’ making it ‘critical not only to [Respondent’s] compliance with federal law but also to the integrity of the larger data privacy ecosystem.’…The Court commends Respondent’s commitment to the privacy of its account holders and to compliance with ECPA. But as the Akhmedova court observed, and as Petitioners note here…, nothing in ECPA requires consent to be communicated in Respondent’s preferred manner. Nor does anything in ECPA require consent to be unlimited in its scope. Further, Flynn’s status as account holder and his consent to disclosure are not reasonably in dispute. Respondent states that Flynn failed its verification process, but Respondent apparently refuses to disclose to anyone—Petitioners’ counsel, the Court, or even Flynn himself—what part of the process he failed, or what he needs to correct. Respondent also does not provide any other evidence suggesting that the “David Flynn” who authored the declaration under penalty of perjury is not the owner of the “xcellent.choice” Skype account or did not give consent to disclosure. Under these circumstances, then, the Court concludes that ECPA’s lawful-consent exception applies.”

So, what do you think? Do you agree with the decision to deny the Motion for Reconsideration? Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today. See Kelly Twigger’s discussion of the case here!

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