Hoang v. IMDb.com, No. 11-1709, W.D.Wash. (Jury verdict April 11, 2013)
The case went to trial on the breach of contract claim. The jury returned a verdict in favor of IMDb.
Though we don’t know the jury’s thinking (we only have a simple verdict form), IMDb had argued, among other things, that its investigations of plaintiff’s birthday were in response to requests she had made. In 2008, plaintiff had asked IMDb to remove a false (1978) birthdate plaintiff had submitted a few years earlier. When IMDb conducted its own research, it found plaintiff’s real birthdate in public records, and published that. The jury found this did not violate IMDB’s Subscriber Agreement.
Huntington Ingalls Inc. v. Doe, 2012 WL 5897483 (N.D. Cal. November 21, 2012)
A federal court in California has allowed a party to subpoena Google to learn the identity of a Gmail account owner, even though that owner did nothing to involve himself in the dispute.
A contractor that plaintiff hired accidentally emailed “property” belonging to plaintiff to the wrong email address. (The court’s opinion is not clear on the nature of this “property,” but we are safe in assuming it was some sort of proprietary information.) Plaintiff sent messages to the Gmail account seeking return of the property, but the unknown account owner did not respond.
Plaintiff filed suit in federal court against the anonymous account holder (John Doe) seeking declaratory and injunctive relief (i.e., to get the property back). Since plaintiff did not know Doe’s identity, it sought expedited discovery so that it could subpoena Google for the identifying information.
The court granted the motion for leave to send the subpoenas. It found that:
- without the subpoena, plaintiff would have no other way to obtain “this most basic information”
- the subpoena was the exclusive means available to plaintiff to protect its property interest
- plaintiff’s proposed procedure guarded Doe’s due process rights by requiring Google to give Doe notice of the subpoena and an opportunity to object
The court’s opinion shows how any privacy interest in one’s email account information is tenuous at best. In this situation, the target of the unmasking efforts was, as they say, minding his own business, not doing anything to inject himself into any dispute.
Moreover, unlike many previous cases in which courts have required the party seeking discovery of an anonymous party’s identity to put forth facts showing it has a good case, there was no claim here that Doe did anything wrong. Instead, it was the sender’s mistake. One could find it unsettling to know that other peoples’ errors could cause a court to order his or her identity to be publicly revealed.
Photo courtesy Flickr user Bart Heird under this Creative Commons license.
AllianceBernstein L.P. v. Atha, — N.Y.S.2d —, 2012 WL 5519060 (N.Y.A.D. 1 Dept., November 15, 2012)
Plaintiff sued its former employee for breach of contract alleging he took client contact information on his iPhone when he left the job. The trial court ordered defendant to turn the iPhone over to plaintiff’s counsel so plaintiff could obtain the allegedly retained information.
Defendant sought review of the discovery order. On appeal, the court reversed and remanded.
The appellate court found that the lower court’s order that defendant turn over his iPhone was beyond the scope of plaintiff’s request and was too broad for the needs of the case. Ordering production of defendant’s iPhone (which, the court observed, has built-in applications and internet access) “was tantamount to ordering the production of his computer.” The iPhone would disclose irrelevant information that might include privileged communications or confidential information.
So the court ordered that the phone and a record of the device’s contents be delivered to the court for an in camera review to determine what, if any information contained on the phone was responsive to plaintiff’s discovery request.
Bollea v. Gawker Media, LLC, 2012 WL 5509624 (M.D.Fla. November 14, 2012)
A few years ago someone surreptitiously filmed Hulk Hogan cavorting in bed with a woman not his wife. Gawker got a copy through an anonymous source and posted a minute of excerpts on gawker.com. (I’m not linking to it but it’s easily accessible. Just be warned, it’s extremely NSFW.)
Hulk sued in federal court alleging various invasion of privacy claims. He sought a preliminary injunction against Gawker continuing to make the video available. The court denied the motion, finding such an injunction to be an unconstitutional prior restraint on Gawker’s free speech right.
Gawker conceded that Hulk had a right of privacy in the contents of the tape, but argued that Gawker’s First Amendment rights outweighed the privacy interest.
The court found that Hulk failed to satisfy his heavy burden to overcome the presumption that a preliminary injunction would be an unconstitutional prior restraint under the First Amendment. Hulk’s public persona, including the publicity he and his family derived from his reality show, his own book describing an affair he had during his marriage, prior reports by other parties of the existence and content of the tape, and Hulk’s own public discussion of issues relating to his marriage, sex life, and the tape all demonstrated, in the court’s view, that the tape was a subject of general interest and concern to the community.
And he failed to show that he would suffer irreparable harm from the publication. The court’s decision on this point was based in part on the fact that mere embarassment was not enough to satisfy the irreparable harm standard. Moreover, the court found this to be a case where the “cat is out of the bag,” so it was not apparent that a preliminary injunction would do anything to help.