This is a post by Jonathan Rogers. Jon is a licensed attorney in California, with a focus on technology and entertainment law. You can reach him by email at jon@jonarogers.com or follow him on Twitter at @jonarogers.
Faconnable USA Corp. v. Doe, Slip Copy, 2011 WL 2173736 (D.Colo., Jun 2, 2011)
Faconnable issued a subpoena duces tecum to Skybeam, an Internet Service Provider, requesting identifying information about the users associated with two different IP addresses. A magistrate judge denied Skybeam’s motion for protective order, and required Skybeam to provide the requested information. Skybeam sought review of the denial of the protective order with the district court, asking for a stay of the magistrate’s order requiring the disclosure of the information. The court granted the motion to stay.
The court looked at four factors to determine whether it was appropriate to issue a stay against providing the information.
- the likelihood of success on appeal (to the district judge)
- the threat of irreparable harm if the stay or injunction is not granted
- the absence of harm to opposing parties if the stay or injunction is granted
- any risk of harm to the public interest
The court noted that if the last three factors are in a moving party’s favor, the first factor of likelihood of success is given less importance.
The court determined that if the stay were denied, the ISP would have to disclose the Does’ identities, which could impact their First Amendment interests to speak anonymously. However, if the stay were allowed, the ISP could preserve the information for production later, the only harm being a possible delay for Faconnable’s suit.
The court found that, on balance, the risk of losing First Amendment freedoms was a greater harm than delayed litigation.