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

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.

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.

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.

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.

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.

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.

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.

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.

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

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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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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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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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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