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Designer Skin LLC v. S & L Vitamins, Inc., et al.
Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

Subpoena - Internet Library of Law and Court Decisions - Updated June 23, 2008

This section of the Internet Law Library contains court decisions addressing the legal obligations of Internet Service Providers and others to respond to subpoenas seeking the identity of anonymous individuals posting materials on their web site.

2001 Va. Lexis 38 (Va. Sup. Ct. 2001)

Declining to honor an order of an Indiana Superior Court, and reversing the decision of the court below, the Virginia Supreme Court held that a publicly-traded company may not, in support of a litigation commenced by that company anonymously in Indiana, issue a subpoena duces tecum to AOL in Virginia to obtain information concerning the identity of various individuals who posted allegedly defamatory remarks in Internet chat rooms.  The court held that the plaintiff's conclusory allegations of economic harm  were insufficient to permit it to proceed anonymously and accordingly declined to honor an order of the Indiana court in which the action was pending which permitted the plaintiff corporation to seek such information anonymously.

Record No. 012761 (Va. Sup. Ct., November 1, 2002)

Affirming the decision of the court below, the Virginia Supreme Court denies America Online's ("AOL") motion to quash, and directs AOL to comply with a subpoena duces tecum seeking information as to the identity of an individual who anonymously posted derogatory comments in an online message board about Nam Tai Electronics, Inc. ("Nam Tai").  The subpoena in question was issued by the Virginia courts in aid of a proceeding pending in the courts of the State of California, in which proceeding Nam Tai alleged that the anonymous Internet poster had violated California's Unfair Business Practice statutes.  The Virginia Supreme Court determined that comity should be accorded the decision of the California court directing the issuance of the subpoena.  In reaching this result, the court rejected AOL's claim that First Amendment concerns barred Nam Tai from obtaining the information in question.

Case No. 1-04-CV-032178 (Superior Ct., Ca., March 11, 2005), writ of mandamus granted, court directed to quash subpoena and issue protective order, 139 Cal. App. 4th 1423, 2006 WL 142685 (Cal. App., 6th Dist., May 26, 2006)

Court denies bloggers' motion for a protective order, which sought to quash a subpoena served by plaintiff Apple Computer, Inc. ("Apple") on Nfox, the e-mail service provider for the blog PowerPage.  The subpoena sought materials, including e-mails, that would permit Apple to identify the individual(s) who transmitted trade secret information about an Apple product to PowerPage, which information PowerPage subsequently published on its blog/website.  The Court held that the bloggers were not entitled to such relief under California's 'Shield Law,' as that statute only protects journalists from being found in contempt for failing to produce information, and does not support a motion to quash.  Similarly, such relief could not be grounded on the privilege afforded journalists under the First Amendment, as this privilege cannot be used to prevent the disclosure of information related to criminal activity such as that at issue here, the disclosure of trade secrets.  Because Apple had made a prima facie case that a crime had occurred, it was entitled to the requested discovery.

CV-06-1537-PHX-DGC (D. Az., July 25, 2006)

Following the lead of the Delaware Supreme Court in Cahill, the Court holds that to obtain leave to serve a subpoena to ascertain the identity of an anonymous online speaker accused of making defamatory statements, a plaintiff must submit evidence of the validity of his claim sufficient to defeat a motion for summary judgment, and establish the existence of a prima facie case.  Because Best Western had not even identified the allegedly defamatory statements, let alone attempted to show their falsity, the court denied Best Western's motion for leave to serve a subpoena.  Plaintiff was given leave to renew its motion on a more substantive evidentiary showing as to the validity of its claims.  The Court did direct the ISPs from whom discovery was sought to preserve any information they may have concerning the identity of the speakers at issue, recognizing that absent such relief, this data may well be lost.

C.A. No. 04C-11-022 JRS (Superior Crt. Del., June 16, 2005), reversed, No. 266, 2005 (Del. Supreme Crt., October 5, 2005)

Court holds that ISP can be compelled in response to Subpoena Duces Tecum to release information that will identify an anonymous speaker accused of making defamatory statements in a blog about plaintiffs provided plaintiffs can show: (i) they have a "good faith basis" to bring their defamation claim; (ii)  the information sought is directly and materially related thereto; and (iii) the information sought cannot be obtained from another source.  Finding plaintiffs had met this burden, the Court directed Comcast to disclose the requested information concerning defendant's identity.  In reaching this result, the Court declined to follow Dendrite Intl. v. Doe, 775 A.2d 756  (N.J. Sup. Ct. App. Div. 2000), which held the party seeking relief to a higher standard, requiring him to demonstrate a prima facie case as a prerequisite to obtaining such disclosure.

Docket No. MRS C-129-00 (Sup. Crt. N.J., Chancery Div., November 28, 2000) aff'd. 343 N.J. Super. 134, 775 A.2d 756 (N.J. Super. Ct., App. Div., July 11, 2001)

Court denies plaintiff's application for the issuance of a subpoena and other process to permit it to obtain from the non-party Yahoo Inc. ("Yahoo") the identity of two individuals who posted anonymous messages on internet-based financial boards maintained by Yahoo. The court's decision was based, in part, on its determination that plaintiff had failed to adequately demonstrate the validity of the claims it sought to advance in its complaint against these John Doe defendants arising out of such postings.

140 F. Supp.2d 1088 (D.C. Wash., April 26, 2001)

Court quashes subpoena served by corporation on information service provider seeking the identity of anonymous non-party posters of messages critical of the corporation.  Corporation sought such information to aid it in establishing that the posting of these messages, and not the conduct of the corporation's officers, caused the stock price fluctuations complained of in a shareholders derivative class action lawsuit in which the corporation was a party.

Court holds that to obtain such information, in light of First Amendment concerns, "the party seeking the information must demonstrate, by a clear showing on the record, that four requirements are met: (1) the subpoena seeking the information was issued in good faith and not for any improper purpose,    (2) the information sought relates to a core claim or defense, (3) the identifying information is directly and materially relevant to that claim or defense, and (4) information sufficient to establish or to disprove that claim or defense is unavailable from any other source."  Finding that the corporation failed to satisfy this "high burden," the Court quashed the subpoena.

No. 06-07-00123-CV (Texas Crt. of Appeals, December 12, 2007)

Following the decision of the Delaware Supreme Court in John Doe No. 1 v. Cahill, the Texas Court of Appeals holds that to obtain the identity of an anonymous individual who allegedly posted defamatory statements online, a plaintiff must submit evidence of the validity of his defamation claim sufficient to survive a motion for summary judgment.  This, held the Court, requires the plaintiff to submit sufficient evidence of each element of his claim that is within his control – he is not required, however, before discovery of the speaker’s identity, to demonstrate that the speaker acted with ‘actual malice’, if such is an element of the defamation claim at issue.

Because the trial court directed the disclosure of the anonymous speaker’s identity without first requiring such a showing, the Court of Appeals conditionally granted the defendant’s application for a writ of mandamus, and remanded the case for further consideration in light of the Court’s opinion.

The Court further held that the Cable Communications Policy Act, 47 U.S.C.A. Section 551(2)(B), does not provide an independent basis for obtaining such disclosure.  While the statute does apply to requests in civil actions brought by private parties seeking to pursue defamation claims, the Court held it only permitted such disclosure pursuant to a properly issued ‘court order.’  This, in Texas, required submission of evidence sufficient to establish a prima facie case, as stated above.

2000 WL 1210372 (Cir. Ct. Va., January 31, 2000) reversed on other grds., sub. nom., America Online Inc. v. Anonymous Publicly Traded Co., 542 S.E.2d 377 (Va. 2001)

Court holds that America Online Inc. ("AOL") must respond to a subpoena duces tecum calling for AOL to identify four AOL Internet service subscribers who allegedly anonymously posted defamatory statements and confidential insider information on the Internet. Court holds that such subpoenas are valid "when the court is satisfied by the pleadings or evidence supplied to [it] that the party requesting the subpoena has a legitimate, good faith basis to contend that it may be the victim of [actionable conduct] ... and the subpoenaed identity information is centrally needed to advance that claim."

Civ. No. 1:07mc34 (GBL) (E.D. Va., April 18, 2008)

Affirming the decision of the Magistrate Judge, the District Court quashed a subpoena issued by State Farm Fire and Casualty Co. (“State Farm”) to AOL, seeking disclosure of the stored emails of two of its customers.  The Court held such disclosure prohibited by the Electronic Communications Privacy Act, 18 U.S.C. Section 2702, which prohibits Internet Service Providers such as AOL, in the absence of express authorization by the statute, from divulging the contents of customers’ electronic communications.  Notably, the Court held that the receipt of a civil subpoena does not, by itself, authorize the ISP’s disclosure of such materials under the ECPA. 

The Court further upheld the Magistrate’s decision to quash the subpoena because it imposed an undue burden on the account holders, was not appropriately limited to communications pertaining to the lawsuit in question, and arguably sought discovery of privileged communications, the propriety of which assertion the Court deferred for ruling by the court in which the underlying dispute for which the discovery was sought was being litigated.

Case No. MS-07-6236-EJL-MHW (D. Idaho, November, 16, 2007)

Magistrate Judge grants in part and denies in part a motion to quash a subpoena issued pursuant to the Digital Millennium Copyright Act (“DMCA”).  The Magistrate Judge denied so much of the motion to quash which sought to prevent disclosure of the identity of the anonymous individual who posted a copy of a letter sent by a lawyer, for which the lawyer had obtained copyright registration, demanding the removal of other anonymous posts from a blog. 

The Court recommended granting so much of the motion to quash which sought to prevent disclosure of the identity of the anonymous individual who made the allegedly offensive posts that counsel sought to have removed in the demand letter in question.

884 A.2d 451, No. 266, 2005 (Del. Supreme Crt., October 5, 2005)

Reversing the Court below, the Delaware Supreme Court holds that to obtain the identity of an anonymous online speaker for the purpose of pursuing a defamation action, the defamed party must first submit to the Court evidence of their validity of such a claim sufficient to survive a summary judgment motion.  Requiring a plaintiff to submit evidence sufficient to establish the existence of a prima facie case strikes a more appropriate balance between the competing interests of free speech and an individual’s right to protect his reputation, than the “good faith” standard applied by the Trial Court.  Under that rejected standard, the plaintiff need only show he had a good faith basis for asserting his claim to obtain the anonymous speaker’s identity.

Case No. CV30197400S (Superior Court Conn., December 2, 2003)

Court grants bill of discovery, requiring ISP to disclose the identity of a subscriber who allegedly sent a defamatory, anonymous e-mail to employees of a French company.  To obtain such discovery, the court required the French company to show that: (1) what it seeks to discover is material, necessary or needed to aid in proof of a claim asserted in an action brought or about to be brought; (2)  there is probable cause to bring the claim, which must be shown by detailed facts; (3) the requested discovery is confined to facts material to the claim; and (4) there are no other adequate means of obtaining the requested discovery.  Finding that the French company met this burden, the court granted the requested relief.

460 F.Supp.2d 259, Civ. Act. No. 06-11825-JLT (D. Mass., October 31, 2006)

Federal Court denies plaintiff's ex parte application for leave to serve subpoenas to obtain the identity of an anonymous speaker who allegedly posted defamatory statements about plaintiff online.  Plaintiff sought to serve such subpoenas on both the domain registrar Go Daddy and Domains By Proxy.  The Federal Court dismissed the action, holding it lacked subject matter jurisdiction over this suit because it only advanced state law claims against a John Doe defendant who's residence was unknown.  The Court also denied plaintiff's application for discovery as to the identity of the anonymous speaker, as his statements about plaintiff were non-actionable statements of opinion, insufficient to give rise to a claim for defamation.

139 Cal. App. 4th 1423, 2006 WL 1452685 (Cal. App. , 6th Dist., May 26, 2006)

Reversing the court below, the California Court of Appeals holds that the Stored Communications Act prohibits an ISP that hosted a blog's email account from disclosing e-mails sent to the blog in response to a subpoena issued in a civil litigation.  The subpoena sought production of e-mails that would permit Apple Computer ("Apple") to identify the individual(s) who transmitted trade secret information about an as yet unreleased Apple product to the blog/website Power Page, which information was the source of articles Power Page subsequently published on its blog/website.

The Court further held that petitioners, who acted as publishers of, and/or editors or reporters for, the news blogs that published the stories at issue about this Apple product, were entitled to a protective order against their disclosure of the confidential sources of their stories.  Notwithstanding Apple's claim that the information petitioners received from these services constituted trade secrets disclosed in violation of confidentiality agreements each of its employees had signed, the Court held such disclosure barred by both California's Reporter's Shield Law and the First Amendment.  The Court held that the Shield Law, which prohibits a court from holding in contempt a publisher, editor or reporter of "a newspaper, magazines or other periodical publication" for failing to disclose the source of a published story, protected petitioners, publishers and/or reporters of news blogs, from having to disclose the sources of the stories at issue.  The First Amendment similarly provided protection, given Apple's failure to fully exhaust other avenues of disclosure before pursuing discovery from petitioners.

2005 N.Y. Misc. Lexis 1155 (Sup. Ct. N.Y. Co., May 27, 2005)

Pursuant to New York Civil Practice Law and Rules ("CPLR") Section 3102(c), the New York Supreme Court granted petitioner Catherine Bolton ("Bolton") pre-action discovery and directed the Internet Service Provider Road Runner to produce documents that would identify the sender of an anonymous e-mail petitioner Bolton claimed defamed her.  The Court granted such relief because petitioner had made the showing necessary for discovery under CPLR §3102 by demonstrating both that she had a meritorious cause of action against the e-mail's author, and that such discovery was necessary to her prosecution of that claim.  The latter requirement was met by petitioner's need to identify the party who allegedly wronged her. 

In reaching this result, the Court rejected the e-mail author's defense that "his" anonymity was protected by the First Amendment.  Applying the five factor test enunciated by the Court in Sony Music Entertainment v. Does 1-40, 326 F. Supp. 2d 556 (S.D.N.Y. 2004) the Court held that petitioner had made the showing necessary to overcome any protections afforded the e-mail's author by the First Amendment.

2003 U.S. Dist. Lexis 681, 240 F. Supp. 2d 24 (D.D.C., Jan. 21, 2003), reversed, 351 F. 3d 1229 (D.C. Cir., Dec. 19, 2003) cert. denied 125 S.Ct. 309 (2004).

Court holds that copyright holder has the right under the Digital Millennium Copyright Act ("DMCA") to compel service provider to produce information which identifies individual who allegedly transmitted infringing materials over service provider's network.  Court accordingly grants motion by the Recording Industry Association of America ("RIAA") to compel Verizon Internet Services ("Verizon") to comply with a subpoena, and produce information which will identify a Verizon customer who used KazaA to download MP3 files.

351 F.3d 1229, Case No. 03-7015 (D.C. Cir., December 19, 2003) cert denied 125 S.Ct. 309 (2004)

Reversing the court below, the D.C. Court of Appeals holds that a copyright holder may not, under the Digital Millennium Copyright Act ("DMCA"), serve a subpoena seeking the identity of an individual who allegedly transmitted infringing materials over a P2P file sharing network, on the Internet Service Provider which provides that individual's connection to the Internet.  The Court accordingly granted the motion of Verizon Internet Services ("Verizon") to quash subpoenas issued by the Recording Industry Association of America ("RIAA") seeking information that would identify Verizon customers who, via a connection to the Internet provided by Verizon, used P2P networks to share MP3 files.  The RIAA has sought to issue subpoenas under the DMCA, in part, because it could do so without the necessity of first commencing a litigation.  The court's ruling obligates the RIAA either to commence such a litigation, or seek leave of the court, before serving such a subpoena on ISPs like Verizon.

Civ. Act. No. 05-3779 (Sup. Crt. Dist. Columbia, August 16, 2006)

Court quashes subpoena, seeking identity of anonymous informant who falsely informed a trade association that plaintiff Solers, Inc. ("Solers") was infringing the copyrights of association members by using unlicensed software in its business operations.  Plaintiff was not entitled to such discovery because it had failed to state a valid claim for defamation, given its inability to allege facts sufficient to demonstrate it sustained actual injury from the anonymous informant's acts.  Notably, the trade association, the Software Information Industry Association ("SIIA"), had elected not to pursue claims against Solers based on this "tip."

Quick Hits

Alvis Coatings Inc. v. John Does One Through Ten
3:04CV374-H (W.D. N.C., December 2, 2004)

Court denies motion to quash, and compels disclosure of identity of anonymous poster of allegedly disparaging online statements on plaintiff's showing of a prima facie case that the speaker's conduct is unlawful.

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General Board of Global Ministers of the United Methodist Church v. Cablevision Lightpath, Inc.
CV 06-3669 (DRH)(ETB) (E.D.N.Y. November 30, 2006).

Court grants Church’s petition pursuant to Fed. R. Civ. P. Rule 27, and directs respondent Cablevision Lightpath Inc. (“Cablevision”) to disclose the identity of the subscriber to whom a particular IP address was assigned.  Petitioner alleged that the IP address in question was used to access without authorization email accounts the Church supplied to seven employees.  Petitioner also alleged that this IP address was used to improperly send an email from one of those accounts, in the name of the account holder, that advised other company employees that they had been terminated for poor job performance.  Petitioner alleged that this conduct violated the Stored Communications Act, 18 U.S.C. Section 2701.

Petitioner sought the requested discovery to “preserve testimony,” as it had been advised by respondent Cablevision that in the ordinary course of business, it would delete the requested information within 90 days of the email transactions in question.

The Court found that petitioner had made the requisite showing for relief under Fed. R. Civ. P. Rule 27 and directed Cablevision to disclose the requested information.  In reaching this result, the Court held that petitioner’s need for disclosure outweighed any First Amendment right of the speaker in question to maintain anonymity.  In so holding the Court analyzed five factors: “(1) a concrete showing of a prima facie claim of actionable harm; (2) specificity of the discovery request; (3) the absence of alternative means to obtain the subpoenaed information; (4) a central need for the subpoenaed information to advance the claim, and (5) the party’s expectation of privacy.”  The Court found each of these factors favored the requested disclosure.  Petitioner had made out a prima facie case that the individual in question violated the Stored Communications Act by improperly accessing employee email accounts without authorization.  Because of the nature of the challenged conduct – such improper access, and the use thereof to impersonate one of the account holders – the court further held that the individual in question had a low expectation of privacy in maintaining the anonymity of her actions.  Petitioner’s request was narrowly tailored to seek only the identity of the speaker from Cablevision, the only known source of such information.  Finally, the court held that the requested information – the identity of the speaker in question -- was needed to permit petitioner to bring a claim seeking redress for the wrongs at issue.  The Court accordingly directed disclosure.

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In re Pamela Greenbaum v. Google Inc. d/b/a Blogger and Blogspot.com
Index No. 102063/07 (Sup. Ct. NY Co., October 23, 2007)

Court dismisses pre-action petition to discover identity of anonymous blogger pursuant to CPLR Section 3102(c) on the grounds that the allegedly defamatory statements are non-actionable, inter alia, because they are statements of opinion.  In reaching this result, the Court does not reach the issue of the standard of evidentiary proof a plaintiff must submit of the bona fides of her claim to be entitled to such disclosure.

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Klehr Harrison Harvey Branzburg & Ellers, LLP v. JPA Development Inc., et al.
No. 0425, 2006 Phil. Crt. Com. Pl. Lexis 1, (Phil. Crt. Com. Pl., Jan. 4, 2006)

Court affirms denial of motion for a protective order, and orders disclosure of identity of annonymous posters of online statements found to be defamatory per se.  Court declines to follow either Dendrite or Cahill, and instead decides defendants' entitlement to a protective order by application of Pennsylvania Rule of Evidence 4011, which dictates when protective orders can be granted in Pennsylvania.  Under this rule, discovery can be had unless it is sought in bad faith, would cause unreasonable annonyance, embarrassment, oppresion, burden or expense to the deponent or any person or party, or is beyond the permissible scope of discovery, which allows discovery as to any matter relevant to the subject matter of the action.

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Lisa Krinsky v. Doe 6
H030767 (Cal. Crt of App., February 5, 2008)

Reversing the court below, California Court of Appeals grants a motion to quash a subpoena seeking the identity of an anonymous online speaker accused of making defamatory comments.  Court holds that such relief is appropriate because the statements in question are non-actionable.  Court of Appeals further holds that to obtain the identity of such an anonymous speaker, the plaintiff must submit evidence sufficient to establish a prima facie case of defamation.

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Recording Industry Association of America v. Charter Communications Inc.
393 F.3d 771 (8th Cir., January 18, 2005)

The Digital Millennium Copyright Act (“DMCA”), section 17 U.S.C. Section 512 (h), does not permit copyright owners and their representatives to obtain and serve subpoenas on internet service providers to obtain personal information about an ISP’s subscribers who are alleged to be transmitting copyrighted works via the internet using so-called ‘peer to peer’ or ‘P2P’ file sharing computer programs, where the ISP acts solely as a conduit for the transmission of material by others.  The text and structure of the DMCA require the ISP to be able both to locate and remove the allegedly infringing material before a subpoena can be issued against it.  The Court based this holding on the requirements of the Act which mandate that a subpoena be accompanied by the notice described in section 512(c)(3)(A) of the DMCA.  Because an ISP cannot remove such material when it acts as a mere conduit, such an ISP cannot be served with a subpoena under the DMCA.  The First Circuit accordingly reversed the decision of the District Court below, and directed that the subpoenas at issue, seeking the identity of individuals who purportedly traded and made available MP3s via P2P programs such Kazaa, be quashed.  In reaching this result, the First Circuit followed and found persuasive the reasoning of the DC Circuit court in RIAA v. Verizon, 351 F.3d 1229 (D.C. Cir., 2003).  

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Rocker Management LLC v. John Does 1 Through 20
No. Misc. 03-0033 CRB (N.D. Ca., May 29, 2003).

Court grants motion to quash subpoena seeking identity of anonymous online poster accused of defaming plaintiff, finding that the statements in question are non-actionable.  In reaching this result, the Court held that to obtain such disclosure, the plaintiff must satisfy the requirements set forth by the same court in Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999).

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