February 28, 2019 Practice Points

Recent Yahoo Litigation Allows for Disclosure of Decedent’s Stored Communications

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by Brendan E. McGough

Personal representatives of an estate can consent to the disclosure of the decedent’s emails under the federal Stored Communications Act (SCA), according to the Massachusetts Supreme Judicial Court (SJC). However, the top Massachusetts court stopped short of requiring Yahoo to turn the emails over to the personal representatives, concluding only that “the personal representatives may provide lawful consent on the decedent’s behalf to the release of the contents of the Yahoo e-mail account.”

In Ajemian v. Yahoo!, Inc., 84 N.E.3d 766 (Mass. 2017), Robert Ajemian set up a Yahoo email account together with his brother, John Ajemian. John used the account as his main email address until his death in 2006. The personal representatives of John’s intestate estate filed a complaint in the Probate and Family Court seeking access to John’s Yahoo email account and all email messages.

On cross motions for summary judgment, the Probate and Family Court granted judgment for Yahoo based on the provisions of the SCA. Specifically, the probate court held that the SCA prohibited Yahoo from disclosing the decedent’s emails to his personal representatives. Both sides appealed the court’s decision and the SJC sua sponte ordered direct appellate review.

The SJC held that the SCA did not prohibit disclosure and reversed the Probate and Family Court’s decision. As the SJC noted, although the SCA generally prohibits disclosure of a person’s stored communications, there are two relevant exceptions to this prohibition: the agency exception and the lawful consent exception.

The SJC first addressed the agency exception. Because the SCA does not define “agent,” the Court applied the common-law principles of agency to determine whether the personal representatives were agents who could authorize disclosure of the emails. The SJC held that the personal representatives were not agents of the decedent, as they were appointed by and subject to the control of the probate court rather than the decedent. Therefore, the agency exception of the SCA was inapplicable.

The SJC then considered the second exception: whether lawful consent under the SCA is limited to actual consent (i.e., consent by the decedent himself), such that it would exclude a personal representative consenting on a decedent’s behalf.

The SJC, in a question of first impression in the United States, determined that the personal representatives could give lawful consent under the SCA, and so the SCA did not prohibit Yahoo from turning over emails to the estate. The SJC reasoned that interpreting lawful consent to mean only express consent from the actual user would impermissibly preempt state probate law. Although Congress may preempt state law, the legislative intent to preempt state law must be clear to overcome the presumption against federal preemption.

After reviewing the statutory language and legislative history of the SCA, the SJC determined that Congress did not clearly intend to preempt state law, and applies Massachusetts state law. Under Massachusetts probate law, personal representatives routinely give consent on behalf of decedents. For example, personal representatives may provide consent for the disclosure of a decedent’s health information or consent to a government search of the decedent’s property. The SJC held that, under the lawful consent exception, the SCA did not prohibit Yahoo from releasing the decedent’s emails to his personal representatives.

Despite this ruling, the SJC did not hold that Yahoo was required to turn over the emails. Rather, the Court remanded the matter to the Probate and Family Court to resolve a factual issue regarding Yahoo’s terms of service. Yahoo argued that because the terms of service allowed Yahoo to terminate the user’s account and emails, Yahoo had the right to destroy the emails rather than turn them over. The SJC required more fact finding on whether the terms of service constituted a valid contract between the decedent and Yahoo that “trump[s] the personal representatives’ asserted property interest.” Notably, Chief Justice Gants dissented from this portion of the holding, noting that he would have rejected Yahoo’s terms of service argument and ordered Yahoo to turn over the emails.

Despite the open question of fact, the SJC’s holding in Ajemian was a victory for personal representatives seeking access to stored communications and has significant implications nationwide. Its principal holding is that the SCA does not prohibit internet companies from releasing stored emails to requesting personal representatives. The importance of this case was not lost on the largest internet companies, as they (through a trade association and lobbying organization) filed an amicus brief in favor of Yahoo. Yahoo filed a writ of certiorari for review by the U.S. Supreme Court, which was denied. Oath Holdings, Inc. v. Ajemian, 84 N.E.3d 766 (Mass. 2017), cert. denied, 138 S.Ct. 1327 (U.S. Mar. 26, 2018) (No. 17-1005). Ajemian is likely the first case of many to address this new frontier of fiduciaries’ rights to access digital assets.

Brendan E. McGough is a 2019 J.D. candidate at Boston College Law School and a litigation law clerk with Gilmore, Rees, Carlson & Cataldo, P.C., in Newton, Massachusetts.

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