Can email records be subpoenaed?

A subpoena is a legal document issued by a court that compels a person or company to produce documents, give testimony, or both. Subpoenas are commonly used in legal proceedings to obtain records from third parties that may be relevant to a case.

Email communications have become increasingly important as evidence in both civil and criminal cases. According to FindLaw, “Email is now the primary method of communication for both personal and business reasons, meaning there is a treasure trove of potentially useful information communicated via email daily.”1

Because email provides a written record of communications and transactions, attorneys now frequently subpoena email providers, companies, and individuals to obtain copies of relevant emails and associated metadata as evidence. However, there are rules around what information can be subpoenaed and how it can be obtained and used in legal proceedings.

Email Content is Not Private

Many people assume that their email content is private, but legally this is not the case, especially for work emails. The Electronic Communications Privacy Act (ECPA) establishes that any communication transmitted through a third party, like an email service provider, loses a reasonable expectation of privacy. Legally, email content is more similar to postal mail than to private phone conversations. Employers in particular have broad rights to monitor employee email accounts on company systems without consent, as long as monitoring serves a legitimate business interest. According to the Electronic Messaging Association, employers can access, use, and disclose employee emails as needed for business purposes like maintaining productivity or investigating misconduct, though policies around email monitoring should be clearly communicated.


Subpoena vs. Warrant

A subpoena is a court order requiring a person or company to provide documents, records, or testimony relevant to a legal proceeding. Subpoenas are commonly used to obtain records from third parties like email providers during the pre-trial discovery phase of a lawsuit or investigation. A search warrant, on the other hand, gives law enforcement permission to search for and seize evidence and requires probable cause that a crime has been committed.

The key differences between a subpoena and a search warrant are:

  • A subpoena requests records or information, while a search warrant allows physical search and seizure of evidence.
  • A subpoena does not require probable cause, just relevance to an investigation or case. A search warrant requires probable cause of criminal activity.
  • Not complying with a subpoena can lead to contempt of court charges. Not complying with a search warrant can lead to obstruction of justice charges.

When it comes to obtaining email records like content or metadata, a subpoena alone is usually sufficient and does not require the heightened probable cause standard of a search warrant. However, a search warrant may be issued for email records if criminal activity is suspected.

Who Can Issue a Subpoena

A subpoena can be issued by a variety of authorities and entities, depending on the jurisdiction and purpose:

Courts: Judges and court clerks can issue subpoenas demanding testimony or documents for both criminal and civil court proceedings. For example, prosecutors and defense attorneys often request subpoenas during a trial to compel witnesses or obtain records.

Government agencies: Administrative agencies at the federal, state, and local level have subpoena power to aid their investigations and rule-making. For example, the SEC can subpoena financial records during an investigation into securities fraud.

Legislative bodies: Congress and state legislatures can issue subpoenas to compel testimony or obtain documents. Congressional committees frequently use subpoenas during investigations into government activities.

Grand juries: Grand juries have broad subpoena power to investigate potential crimes and determine whether charges should be brought. This allows them to obtain documents and compel witness testimony.

Private parties: In civil litigation between private parties, attorneys can have the clerk of the court issue subpoenas to obtain evidence from third parties relevant to the case.

Subpoenas are powerful investigative tools that allow various authorities to gather evidence and information. However, there are restrictions on what records can be obtained and legal processes to challenge overbroad or unduly burdensome subpoenas.

Challenging a Subpoena

Note that a subpoena can be legally challenged in court. A motion to quash can be filed to contest the validity of a subpoena. There are several grounds on which a subpoena may be challenged:

Overly broad or unduly burdensome – If the subpoena is too broad in scope or would be unreasonably burdensome to comply with, it may be quashed. The party contesting the subpoena must show how compliance would be burdensome. Seven ways to quash a subpoena – Advocate Magazine

Lack of relevance – The documents or testimony requested must be relevant to the case. If the subpoena seeks irrelevant information, a motion to quash can be filed. 210.3Subpoena to Produce Documents

Privileged information – Subpoenas asking for privileged information like attorney-client communications or trade secrets can be quashed. The privilege must be specified in the motion. Third-Party Subpoena Response | Process, Checklist, & …

Incorrect jurisdiction – If the subpoena comes from a court that lacks jurisdiction, it can be challenged.

Unreasonable timeframe – If the deadline given to comply with the subpoena is unrealistic, this may be grounds for quashing it.

Subpoenas for Email Content

A subpoena can request access to the content of private emails as part of a civil lawsuit or criminal investigation. However, there are some protections against overreach when it comes to accessing personal communications.

The Stored Communications Act generally prohibits email providers like Gmail or Yahoo from disclosing the contents of a user’s emails without their consent. But there is an exception that allows providers to comply with a valid subpoena [1].

While a subpoena can request email contents, the user has the opportunity to file a motion to quash the subpoena if they believe it violates their privacy rights or otherwise should not have to comply. The court can modify or quash a subpoena if it determines the request is unreasonable or oppressive [2].

Overall, email contents can potentially be subpoenaed but users have some recourse if the subpoena is overbroad or seeks information that should remain private. Courts aim to balance investigative/discovery needs with individual privacy rights.

Subpoenas for Email Metadata

A subpoena can request metadata related to emails, such as the sender, recipients, date, time, and subject line. This metadata does not include the content or body of the emails themselves, which is protected under the Stored Communications Act (SCA) and requires a warrant to access in most cases.

According to one analysis, email metadata like sender, recipients, and timestamps can be subpoenaed even for emails that are otherwise protected under the SCA. The metadata itself does not reveal private communications and provides only logistical details about the emails.

Subpoenaing email metadata can be useful in civil litigation or investigations to establish timelines of communication between parties without accessing the potentially privileged contents of those emails. However, challenges may arise if the request seems overly broad or irrelevant to the case at hand.

Email Providers and Subpoenas

Major email providers like Google (Gmail) and Microsoft (Outlook/Hotmail) have policies in place for handling subpoenas requesting access to user data. While companies aim to protect user privacy, they are still legally obligated to comply with valid subpoenas.

For basic subscriber information like name, address, and IP logs, Microsoft requires at least a subpoena before disclosure (About our practices and your data – Microsoft & Data Law). For content information like emails, a full search warrant is needed (Law Enforcement Request Report | Microsoft CSR).

Google’s policy is similar – a subpoena is needed for non-content records, while a warrant is required for Gmail content (Microsoft® Online Services Global Criminal Compliance Handbook, p. 22).

In most cases, email providers are restricted from notifying users about subpoenas. Courts can issue gag orders preventing disclosure. However, some providers like Google do publish periodic transparency reports summarizing the number and types of requests received.

Using Email Records in Court

Email records obtained by subpoena can be extremely useful as evidence in both criminal and civil court cases. However, for email records to be admissible as evidence in court, attorneys need to lay the proper foundation to get them admitted. This involves authenticating the emails by showing they are genuine and establishing that they are relevant to the case.

There are several requirements that typically need to be met for emails to be admissible in court:

  • The emails must be properly authenticated – This means having a witness testify that the emails are genuine communications that were sent and received by the parties.
  • The emails must fall under a hearsay exception – Hearsay is generally inadmissible, so attorneys need to show the emails qualify under an exception like the business records exception.
  • The emails must be relevant – Their content needs to relate to the facts at issue in the case.
  • The emails should not be prejudicial – Their probative value cannot be substantially outweighed by the risk of unfair prejudice.

Once attorneys have laid this foundation and overcome any evidentiary objections, email records can be powerful evidence. Emails often contain admissions or factual statements from parties related to the issues in dispute. Some examples of cases where email records obtained by subpoena played a key role include:

  • A divorce case where emails between a husband and another woman showed he was having an affair, supporting the wife’s claim of adultery (source).
  • An employment discrimination case where emails demonstrated management’s racial bias in firing decisions (source).
  • A contract dispute where email exchanges showed the parties had entered into a binding agreement (source).

With proper authentication and foundation, email evidence can vividly demonstrate the facts for a judge and jury. Attorneys use email records obtained through subpoenas as a key part of proving their case in many different types of litigation.


Email content does not have the same legal protections and expectations of privacy as other forms of private communication. While a warrant is required for law enforcement to search the contents of something like a private letter or phone call, a subpoena is generally sufficient to obtain email contents and metadata.

Email providers and other third parties that possess email records can be compelled to turn those records over if they receive a valid subpoena. The entity being subpoenaed has the right to object in court if they believe the subpoena is inappropriate or overly broad, but the burden is on them to file a motion to quash the subpoena.

If email records contain information relevant to a legal proceeding, the records can be subpoenaed and used as evidence in court. Users should be aware that their emails are not completely private and the content can be obtained and made public through lawful means, such as a subpoena.

In summary, email content is not legally protected as private correspondence. Valid subpoenas can compel email providers and other entities to turn over email records to support legal proceedings or investigations. Before hitting send, email users should remember that their messages could potentially be obtained and scrutinized if relevant to a court case or investigation.