and “by the practical consequences that would flow from adopting it.” He therefore
concluded that Microsoft was obligated to produce the customer’s content, wherever it
might be stored. He also treated the place where the government would review the
content (the United States), not the place of storage (Ireland), as the relevant place of
seizure.
Microsoft appealed the magistrate judge’s decision to Chief Judge Loretta A.
Preska, who, on de novo review and after a hearing, adopted the magistrate judge’s
reasoning and affirmed his ruling from the bench. In re Warrant to Search a Certain
E‐Mail Account Controlled and Maintained by Microsoft Corporation, 1:13‐mj‐02814
(S.D.N.Y. filed Dec. 4, 2013), ECF No. 80 (order reflecting ruling made at oral
argument).
Microsoft timely noticed its appeal of the District Court’s decision denying the
motion to quash. Not long after, the District Court acted on a stipulation submitted
jointly by the parties and held Microsoft in civil contempt for refusing to comply fully
with the Warrant.9 Id. at ECF No. 92. Microsoft timely amended its notice of appeal to
reflect its additional challenge to the District Court’s contempt ruling.
We now reverse the District Court’s denial of Microsoft’s motion to quash; vacate
the finding of contempt; and remand the case to the District Court with instructions to
As reflected in their stipulation, Microsoft and the government agreed to the contempt finding
to ensure our Court’s appellate jurisdiction over their dispute. See United States v. Punn, 737 F.3d
1, 5 (2d Cir. 2013) (noting general rule that contempt finding needed before ruling denying
motion to quash is sufficiently “final” to support appellate jurisdiction). Because Microsoft
timely appealed the contempt ruling, we need not decide whether we would have had
jurisdiction over an appeal taken directly from the denial of the motion to quash. See United
States v. Constr. Prods. Research, Inc., 73 F.3d 464, 468–69 (2d Cir. 1996) (noting exception to
contempt requirement as basis for appellate jurisdiction in context of third party subpoena
issued in administrative investigation).
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