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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 - Disclosure Granted - Internet Library of Law and Court Decisions - Updated April 21, 2008

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.

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.

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.

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.

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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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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