District judge stays magistrate’s order requiring identification of anonymous defendants

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.

Court protects identity of anonymous email sender

Sandals Resorts Intern. Ltd. v. Google, Inc., — N.Y.S.2d —, 2011 WL 1885939, (N.Y.A.D. 1 Dept., May 19, 2011)

Some unknown person sent an email to a number of undisclosed recipients containing information that was critical of the hiring and other business practices of the Caribbean resort Sandals. Irritated by this communication, Sandals filed an action in New York state court seeking a subpoena to compel Google to identify the owner of the offending Gmail account.

The trial court denied the petition seeking discovery. Sandals sought review with the appellate court. On appeal, the court affirmed the denial of the petition for discovery.

Under New York law, a person or entity can learn the identity of an unknown possible defendant only when it demonstrates that it has “a meritorious cause of action and that the information sought is material and necessary to the actionable wrong.” In this case, the court held that the petition failed to demonstrate that Sandals had a meritorious cause of action.

The court found that nothing in the petition identified specific assertions of fact as false. It also found that the lower court did not err in reasoning that the failure to allege the nature of the injuries caused by the statements in the email were fatal to the petition.

It went on to find that even if the petition had sufficiently alleged the email injured Sandals’ business reputation or damaged its credit standing, it would still deny the application for disclosure of the account holder’s identification on the ground that the subject email was constitutionally protected opinion.

In discussing this portion of its decision, the court said some interesting things about the nature of internet communications, apparently allowing a certain characterization of online speech to affect its rationale:

The culture of Internet communications, as distinct from that of print media such a newspapers and magazines, has been characterized as encouraging a “freewheeling, anything-goes writing style.” […] [T]he e-mail at issue here . . . bears some similarity to the type of handbills and pamphlets whose anonymity is protected when their publication is prompted by the desire to question, challenge and criticize the practices of those in power without incurring adverse consequences such as economic or official retaliation. […] Indeed, the anonymity of the e-mail makes it more likely that a reasonable reader would view its assertions with some skepticism and tend to treat its contents as opinion rather than as fact.

The court made clear that these observations were “in no way intended to immunize e-mails the focus and purpose of which are to disseminate injurious falsehoods about their subjects.” The real cause for concern, and the thing to protect against, in the court’s view, was “the use of subpoenas by corporations and plaintiffs with business interests to enlist the help of ISPs via court orders to silence their online critics, which threatens to stifle the free exchange of ideas.”

More subpoenas on the way to identify John Doe BitTorrent users in copyright cases

First Time Videos v. Does 1-37, 2011 WL 1431619 (N.D. California, April 14, 2011)

Hard Drive Productions v. Does 1-118, 2011 WL 1431612 (N.D. California, April 14, 2011)

There have been a couple of new cases filed in federal court in California alleging that unknown BitTorrent users committed copyright infringement and engaged in civil conspiracy by trading porn files online. [Read about some earlier, ongoing cases of this type here and here]. The court has issued orders that move the process of uncovering the identities of the John Doe defendant BitTorrent users.

Generally a plaintiff cannot start the discovery process in a case until it has had a “Rule 26(f)” conference with the defendant. But when the defendants are anonymous (as they are in these BitTorrent cases — they’re known only by IP address), the plaintiff has a bit of a problem. It needs discovery to find out the names of the defendants, but it cannot take discovery before the Rule 26(f) conference. [More on this]

So in cases like this, a plaintiff will ask the court to allow the early discovery to be had. Courts grant those motions allowing early discovery when good cause has been shown.

In this case, the court allowed the discovery because the following four criteria had been met:

(1) The plaintiffs had identified the Doe defendants with sufficient specificity that the court could determine that the defendants are real people who can be sued in federal court. On this point, the court credited the list of IP addresses associated with each of the unknown defendants.

(2) The plaintiffs recounted the steps taken to locate and identify the defendants. Again, the court looked to the fact that the defendants were known only by IP addresses. The names of the defendants could not be ascertained from the information available.

(3) The plaintiffs demonstrated that the action could withstand a motion to dismiss. In some cases this is a tough hurdle to get over. But in copyright cases the threshold can be met relatively easily — simply alleging ownership of a copyright and unlawful copying satisfies this element.

(4) The plaintiffs proved that the discovery was likely to lead to identifying information that will permit service of process. Getting the subscriber information from the ISPs would allow names to be associated with the IP addresses, for further action to be taken.

(The above 4-factor test is drawn from Columbia Ins. Co. v. seescandy. com, 185 F.R.D. 573, 578–80 (N.D.Cal.1999).)

So ISPs across the country will be getting peppered with more subpoenas, and sending out letters to their John Doe subscribers, giving deadlines to move to quash the subpoenas. More mad scramble to protect identities is on its way.

Texas supreme court says identities of anonymous bloggers should not be disclosed

In re Does, — S.W.3d —, 2011 WL 1447544 (Texas, April 15, 2011)

The issue of anonymity is a hot topic in internet law. The question of whether an internet user known only by an IP address or username or website name should be identified arises fairly often in the early stages of internet defamation and certain copyright infringement cases. For example, the issue is a big one in the numerous copyright cases that have been brought recently against BitTorrent users who get subpoenas after being accused of trading copyrighted works online.

The supreme court of Texas has issued an opinion that protects the anonymity of a couple of bloggers who were accused of defamation, copyright infringement and invasion of privacy by another blogger. The court ordered that a subpoena served on Google (who hosted the Blogger accounts in question) be quashed.

Texas rules of procedure (Rule 202) allow a petitioner to take depositions before a lawsuit is filed in order to investigate a potential claim. The petitioner in this case filed such an action, and Google agreed to turn over the information about the anonymous Blogger users.

But the anonymous bloggers objected, and moved to quash the deposition subpoena, arguing that the findings required for the discovery to be taken had not been made.

The trial court was required to find that:

(1) allowing the petitioner to take the requested depositions may prevent a failure or delay of justice in an anticipated suit; or

(2) the likely benefit of allowing the petitioner to take the requested deposition to investigate a potential claim outweighs the burden or expense of the procedure.

Neither of these findings were made. Petitioner had tried to argue that the findings were not necessary because he had gotten the agreement of Google to turn over the information.

But the court saw how that missed the point. It held that without the required findings, the discovery could not be taken in the face of objections brought by other interested parties (the parties whose identities were at risk of being revealed).

While many courts have evaluated this kind of question using a first amendment analysis (i.e., is the John Doe’s interest in speaking anonymously outweighed by the plaintiff’s right to seek redress), the court in this case looked to more general concerns of avoiding litigation abuse. Citing to a law review article by Professor Hoffman, the court observed that there is “cause for concern about insufficient judicial attention to petitions to take presuit discovery” and that “judges should maintain an active oversight role to ensure that [such discovery is] not misused”.

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