Davies is referring to litigation that was filed by an Alaskan activist before the alleged hack occurred. That lawsuit sought Palin’s private e-mail. The activist charged that Palin used her Yahoo accounts to conduct official government business and therefore e-mail in the accounts was part of the public record and should be disclosed under Alaska’s public records statute. A judge ruled, after news of the hack broke, that Palin was required to preserve the correspondence in her private accounts until the lawsuit was resolved.

Davies implies in his motion to dismiss that there are reasonable grounds to conclude that Palin’s Yahoo correspondence was a public record, and cites case law showing that information that already appears on the public record can’t be considered private.