In what is probably the first case of its kind, the District Judge at Vishakhapatnam has restrained Google, on the 4th of April, 2012, from complying with a subpoena issued by the Superior Court of California, ordering Google to share the password of the Gmail account belonging to an Indian citizen residing in Vishakhapatnam. The Plaintiff in this case argued that as an India citizen he had a right to privacy under the Indian Constitution and that the defendants could not violate his right. The order was passed ex-parte against [email protected] and an American law firm, both of whom are required to appear before the Court on the 24th of April, 2012. The warrant of summons against [email protected] is accessible over here. In specific it restrains the defendants from sharing the password or information pertaining to the Plaintiff’s gmail.com account.
The Indian citizen, Mr. Kopisetty Sreeramulu, represented by M/s Badrinath & Madanmohan, informed the District Court that he had received an email, on 14th March, 2012, from [email protected] informing him that they would share the information in his gmail.com account, in pursuance to a subpoena from the Superior Court of California unless he could produce an order quashing the subpoena. Mr. Sreeramulu, a freelance IT professional, who provides services to U.S. based companies, does not appear to be a party to the litigation before the Superior Court of California. The litigation before the California court pertains to a dispute between two other parties and it appears that Mr. Sreeramulu, or rather his gmail.com account, was in possession of certain documents or information which was vital to the litigation before the California court. Discovery of evidence under American laws is quite strict and applicable against even third parties who may possess evidence vital to litigation between other parties.
There have been an increasing number of cases in the last few years where American companies have vigorously pursued cross border discovery and recording of evidence. These were however mostly physical cases where witnesses of documents were examined in India and there do not appear to be any precedents relating to the present case. For example in the Upaid v. Satyam litigation before the District Court of Texas, the Plaintiffs, Upaid, needed to record evidence from Indian based citizen/employees of Satyam. Usually in such cases, U.S. Courts issue ‘letters rogatory’, under the Hague Convention on ‘Taking of Evidence Abroad in Civil or Commercial Matters’, requesting the Indian state to assist in the collection of evidence. Such letters rogatory can be enforced, in India, only by High Courts, as per the Code of Civil Procedure, 1908. Upaid had considerable success in getting the Andhra Pradesh High Court to issue commissions to examine Indian witnesses.
The present litigation at Vishakhapatnam does not seem to have been taken place under any of these international conventions. Instead the American Court has served these subpoenas directly on Google because gmail.com is owned by Google Incorporated which is a company incorporated under the laws of America and located in California. As per the terms and conditions of Google, all gmail.com users consent to be governed by the laws of the U.S. In pertinent part the terms and conditions of gmail.com state that Google will comply with valid legal processes seeking account information, such as search warrants, court orders, or subpoenas. Google does not seem to have individual service conditions depending on the citizenship of its users. Technically therefore an Indian court could order Google to share the gmail.com contents of an American citizen. Compliance is an entirely different issue.
Interestingly, defendant No. 2 in the suit before the District Judge is an email ID: [email protected]. Normally, email IDs cannot be made defendants but in this case I’m inclined to believe that the Court will give the Plaintiffs some leeway in this situation. If the defendants had made Google India Pvt. Ltd. a party to the suit, the company would have been dropped from the suit on the grounds that they do not control gmail.com and that they are a separate corporate entity form Google Inc. which owns and operates gmail.com. This is exactly what happened in the litigation in Delhi against Google for allegedly carrying obscene content on one of their websites. If Google Inc. had been made party, it is unlikely that they would consider themselves to be bound by an Indian court on the grounds that they do not operate in India.
This raises the question of whether the District Court in Vishakhapatnam even had jurisdiction to hear the matter. The plaintiff however argued that the cause of action in the present suit arose when the Plaintiff created his gmail.com account in Vishakhapatnam and also when he received the legal notice in Vishakhapatnam from [email protected]. It is interesting to note however that as per gmail.com’s service conditions, all users of gmail.com agree to be governed by the laws of the U.S. In pertinent part, the terms and conditions of gmail.com state the following: “The laws of California, U.S.A., excluding California’s conflict of laws rules, will apply to any disputes arising out of or relating to these terms or the Services. All claims arising out of or relating to these terms or the Services will be litigated exclusively in the federal or state courts of Santa Clara County, California, USA, and you and Google consent to personal jurisdiction in those courts.” Now, the present suit is technically not a dispute between Google and the plaintiff. It is a dispute between two other parties.
This order thus raises some extremely interesting issues. How exactly is Google supposed to resolve contradictory orders between an American court and an Indian court? Would Google India Pvt. Ltd. be liable for any action of its parent company Google Inc., if the latter were to disobey the orders of the Indian Court? Will Indian Courts pierce the corporate veil in such cases? Most importantly, would Google Inc. consider itself bound by an order of an Indian court of law? Can Google use its terms, especially the exclusion of ‘conflict law’ provisions in Californian laws to its advantage?
P.S. we owe a big thanks to an anonymous source, for pointing us towards this story.