discovery – Page 2 – Attorney Evan Brown

November 15, 2012 Electronic Discovery, Privacy

Court orders in camera review of injured plaintiff’s Facebook content

Richards v. Hertz Corp., — N.Y.S.2d —, 2012 WL 5503841 (N.Y.A.D. 2 Dept. November 14, 2012)

Plaintiff sued defendant for personal injury. Defendant saw a photo plaintiff had publicly posted on Facebook of herself skiing. When defendant requested plaintiff to turn over the rest of her Facebook content (presumably to find other like-pictures which would undermine plaintiff’s case), plaintiff sought a protective order. The trial court granted the motion for protective order, but required plaintiff to turn over every photo she had posted to Facebook of herself engaged in a “sporting activity”.

Defendants appealed the entry of the protective order. On review, the appellate court reversed and remanded, finding that defendants had made a showing that at least some of the discovery sought would result in the disclosure of relevant or potentially relevant evidence.

But due to the “likely presence” of private and irrelevant information in plaintiff’s account, the court ordered the information be turned over to the judge for an in camera review prior to disclosure to defendants.

Whether the plaintiff effectively preserved her Facebook account information may be an issue here. The facts go back to 2009. One is left to wonder whether and to what extent plaintiff has not gone back and deleted information from her account which would bear on the nature and extent of her injuries. It goes to show that social media discovery disputes can take on a number of nuances.

Photo courtesy Flickr user decafinata under this Creative Commons license.

June 11, 2011 Electronic Discovery, Trademarks, Unfair Competition

Court allows discovery of competitor’s keyword purchases

Scooter Store, Inc. v. Spinlife.com, LLC, 2011 WL 2160462 (S.D. Ohio June 1, 2011)

The Scooter Store and a related company sued a competitor for trademark infringement and other causes of action for unfair competition based in part on the competitor’s purchase of keywords such as “scooter store” and “your scooter store” to trigger sponsored advertisements on the web. Defendant moved for summary judgment and also moved for a protective order that would prevent it from having to turn over information to plaintiffs concerning defendant’s purchase of the keywords. The court denied the motion for protective order.

Defendant argued that it should not have to turn over the information because plaintiffs’ trademark claims based on those keywords were without merit, as the words are generic terms for the goods and services plaintiffs provide. Defendant also asserted a need to protect the commercially sensitive nature of information about its keyword purchases.

The court rejected defendant’s arguments, ordering that the discovery be allowed. It held that “whether or not [p]laintiffs’ claims involving these terms survive summary judgment [] has no bearing on whether the discovery [p]laintiffs seek is relevant, particularly viewed in light of a party’s broad rights to discovery under Rule 26.” As for protecting the sensitivity of the information, the court found that such interests could be protected through the process of designating the information confidential, and handled accordingly by the receiving party.

May 21, 2011 Anonymity, Defamation

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.”

April 16, 2011 Anonymity, Defamation, Litigation

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”.

February 8, 2011 Electronic Discovery, Privacy, Uncategorized

Facebook user had standing to challenge subpoena seeking his profile information

Mancuso v. Florida Metropolitan University, Inc., 2011 WL 310726 (S.D. Fla. January 28, 2011 )

Plaintiff sued his former employer seeking back overtime wages. In preparing its defense of the case, the employer sent supboenas to Facebook and Myspace seeking information about plaintiff’s use of those platforms. (The employer probably wanted to subtract the amount of time plaintiff spent messing around online from his claim of back pay.) Plaintiff moved to quash the subpoenas, claiming that his accounts contained confidential and privileged information. The court denied the motion as to these social networking accounts, but did so kind of on a technicality. The subpoenas were issued out of federal district courts in California, and since this court (in Florida) did not have jurisdiction over the issuance of those subpoenas, it had to deny the motion to quash.

But there was some interesting discussion that took place in getting to this analysis that is worth noting. Generally, a party does not have standing to challenge a subpoena served on a non-party, unless that party has a personal right or privilege with respect to the subject matter of the materials subpoenaed. The employer argued that plaintiff did not have standing to challenge the subpoenas in the first place.

The court disagreed, looking to the case of Crispin v. Christian Audiger, Inc. 717 F.Supp.2d 965 (C.D. Cal. 2010), in which that court explained:

[A]n individual has a personal right in information in his or her profile and inbox on a social networking site and his or her webmail inbox in the same way that an individual has a personal right in employment and banking records. As with bank and employment records, this personal right is sufficient to confer standing to move to quash a subpoena seeking such information.

This almost sounds like an individual has a privacy right in his or her social media information. But the p-word is absent from this analysis. So from this case we know there is a right to challenge subpoenas directed at intermediaries with information. We’re just not given much to go on as to why such a subpoena should be quashed.

November 13, 2010 Electronic Discovery, Litigation, Privacy

Facebook account protected from disclosure in discovery, for now

McCann v. Harleysville Insurance, — N.Y.S.2d —, 2010 WL 4540599 (November 12, 2010)

Unlike some recent cases such as Romano v. Steelcase, which seem to give the impression that the information in a person’s social networking account is always fair game for discovery in litigation, one New York court has come down on the side of protecting the privacy of a Facebook user’s content.

Plaintiff was injured in an automobile accident and filed a lawsuit over her injuries. In the course of discovery, defendant sought photographs from plaintiff’s Facebook account and “an authorization” to access the account. Defendant claimed the sought-after discovery related to whether plaintiff sustained a serious injury.

After plaintiff did not respond to the discovery requests, defendant moved to compel. The trial court denied the motion, finding the discovery to be overly broad, and finding that defendant had failed to show the relevancy of the information to be discovered. Defendant sought review with the appellate court. On appeal, the court affirmed.

The court held that the discovery sought was too broad and that defendant had failed to show the relevancy of the information. It affirmed the denial of the motion as to avoid a “fishing expedition.”

But the holding is anything but reassuring from the plaintiff’s perspective. It affirmed the denial without prejudice to serving additional discovery requests. So it sounds as if defendant tailors its discovery a bit more closely, and shows how accessing plaintiff’s Facebook account will provide relevant evidence, it may see some success.

July 13, 2010 Anonymity

Ninth Circuit orders anonymous internet speakers be identified

In re Anonymous Online Speakers, — F.3d —, 2010 WL 2721490 (9th Cir. July 12, 2010)

Quixtar (which used to be Amway) sued Signature Management TEAM (“TEAM”) for tortious interference and other claims, alleging that TEAM engaged in a smear campaign against Quixtar on the internet. In his deposition, TEAM’s online content manager refused to answer questions concerning the identity of the authors of certain statements made against Quixtar online. On Quixtar’s motion, the court ordered that the online content manager answer some of the questions concerning the anonymous speakers.

The anonymous speakers sought mandamus relief from the Ninth Circuit. On appeal, the court denied the request. It held that the district court’s decision was not “clearly erroneous as a matter of law.”

The district court had applied the stringent test set out in Doe v. Cahill, which requires, among other things, that the party seeking the identity of an anonymous internet speaker present enough facts to support a hypothetical motion for summary judgment.

The Ninth Circuit looked to the nature of the speech at issue — commercial speech — and held that the Cahill standard was too high. But the application of a too-high standard did not mean that the lower court should be reversed. The outcome would have been the same (i.e., the anonymous speakers would have been ordered unmasked) even if the district court had correctly applied a lower standard appropriate for commercial speech.

This is a significant case on the topic of anonymity because it is only the third federal circuit opinion to consider the question as to when unknown online speakers should be identified. The others are NLRB v. Midland Daily News (6th Cir. 1998) and Lefkoe v. Jos. A. Bank Clothiers, (4th Cir. 2009).

June 17, 2010 Anonymity, Electronic Discovery, Privacy

Illinois court sets standard for unmasking anonymous commenters

Maxon v. Ottawa Pub. Co., — N.E.2d —, 2010 WL 2245065 (Ill.App. 3 Dist. June 1, 2010)

The rules of civil procedure in Illinois permit an aggrieved party to file a petition with the court asking for an order requiring unknown potential defendants to be identified. This is called a Rule 224 petition.

A couple from Ottawa, Illinois got their feelings hurt over some anonymous comments left in response to content published by the local newspaper on its website. Wanting to sue for defamation, the couple filed a Rule 224 petition. The newspaper opposed the petition. (For something similar, see Enterline v. Pocono Medical Center.)

The trial court denied the petition, applying the standards articulated in Dendrite v. Doe and Doe v. Cahill, finding that the petitioners had not presented a strong enough case for defamation to justify the unmasking of the anonymous commenters. Those cases require, among other things, that a party seeking to identify an anonymous speaker make efforts to notify the anonymous party, and present enough evidence to establish a prima facie case of defamation (Dendrite) or survive a hypothetical motion for summary judgment (Cahill).

The aggrieved couple sought review with the Appellate Court of Illinois. Reviewing the decision to deny the Rule 224 petition de novo, the court reversed and remanded, ordering the identification of the anonymous speakers to be made.

In reaching its decision, the court rejected the newspaper’s (and amicis’) arguments that the trial court should apply the rigorous standards of Dendrite and Cahill. That’s not to say, however, that the court left anonymous speakers at great risk of having their First Amendment rights trampled upon.

The court held that the mechanics of Rule 224 adequately protect the potential First Amendment rights of anonymous internet speakers. Here’s why, according to the court:

The petition must be verified – the threat of the pain of perjury should keep out half-hearted claims.
The petition must state the reason discovery is necessary.
The discovery is limited only to learning the identity of the potential defendant.
Most importantly, before the discovery will be permitted, the court must hold a hearing and determine the petition sufficiently states a cause of action.

In this fourth step, the court is to apply the standard it would apply in a Section 2-615 motion. Such a motion is, essentially, the Illinois version of a motion to dismiss for failure to state a claim. That is no insignificant test, because unlike federal court and other state jurisdictions, Illinois requires fact pleading. That means the petition needs to include a significant amount of specific information to survive the motion to dismiss.

A troubling aspect of the ruling is the omission from the test of a requirement that the party seeking discovery attempt to notify the anonymous target of the inquisition. The appellate court held that a trial court may, in its discretion, impose such a requirement.

But it would be nice to know that the real party whose First Amendment interests are at stake (the anonymous speaker) is guaranteed a fair opportunity to argue from his or her perspective. After all, it’s that party with the real incentive to do so. Let’s hope the trial courts exercise that discretion wisely (and that they know in the first place that they have that discretion).

Photo courtesy Flickr user TheTruthAbout… under this Creative Commons license.

Court orders anonymous GQ blogger and accused hacker to be identified

Advance Magazine Publishers v. Does 1-5, No. 09-10257 (S.D.N.Y. Dec. 22, 2009)

Someone accessing the Internet using an AT&T IP address hacked into Conde Nast’s computer system and acquired and published copies of editorial content and the images that were to be in the December 2009 issue of GQ. Those images were later published anonymously on a blog hosted by Google’s Blogger service.

masked cutie

Conde Nast sued in federal court alleging copyright infringement (for the posting of the content) and violation of the Computer Fraud and Abuse Act (for the unauthorized accessing of the Conde Nast servers). Since the identity of the person or persons committing these acts was not known, Conde Nast sued “John Does 1 through 5”. It then filed a motion with the court for permission to serve subpoenas on AT&T and Google to get information with which to give the defendants a name.

The court granted the motion and authorized the subpoenas.

Rule 26(d) requires that a party demonstrate good cause before expedited discovery will be permitted. In this case, Conde Nast gave four reasons supporting good cause:

It had sufficiently pled causes of action under the Copyright Act and the Computer Fraud and Abuse Act
AT&T’s server activity logs and Google’s registration data were at risk of being overwritten or purged
The scope of the information requested was appropriate — the only items being requested were those sufficient to name the defendants
Without the identifying information, the case would be at a standstill and Conde Nast might be left without a remedy

For these reasons the court ordered the anonymous participants to be unmasked.

Masked woman photo courtesy Flickr user Alaskan Dude under this Creative Commons license.

March 8, 2009 Anonymity, First Amendment

Maryland Court of Appeals addresses important question of internet anonymity

Independent Newspapers, Inc. v. Brodie, — A.2d —, 2009 WL 484956 (Md. February 27, 2009)

Maryland’s highest state court has issued a comprehensive opinion setting out the proper framework trial courts should use when evaluating whether a plaintiff should be permitted to learn the identity of an anonymous (or pseudonymous) internet speaker. After considering the varying standards courts across the country have applied in balancing the First Amendment right to anonymity against the right of a plaintiff to seek redress, the court adopted, in large part, the standard put forth in the New Jersey case of Dendrite, Int’l. v. Doe, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001) which requires, among other things, a prima facie showing by the plaintiff before compulsory discovery concerning the identity of an unknown defendant will be had.

One of the great things about the internet is that users can easily speak anonymously or through a pseudonym. This right to remain unidentified is a free speech right guaranteed by the First Amendment. But that right has limits which start to show when an anonymous speaker goes too far by venturing from the realm of protected speech into that of unprotected defamation.

An aggrieved party going after an unknown defamer must first figure out who the defendant is. This usually involves a subpoena to the operator of the service through which the offending content was transmitted, to the unknown John Doe’s internet service provider, or both. This use of compulsory judicial process to reveal the identity of an unknown speaker pits the speaker’s First Amendment right to anonymity against the defamation plaintiff’s right to seek redress for the tort that has been committed.

It is up to the courts to weigh the competing interests so that:

a defendant’s First Amendment right to anonymity is not violated by wrongful compelled disclosure in connection with an unmeritorious case; while
aggrieved subjects of harmful defamatory speech are not deprived of the remedies due to them in a civil society.

This weighing of competing interests illustrates why the scale is a good metaphor for justice.

The Brodie case

Plaintiff Brodie learned that certain participants in an online forum board were saying negative things about him. Three users identified as “CorsicaRiver,” “Born & Raised Here” and “chatdusoleil” engaged in an online public conversation about Brodie’s sale of an historic farmhouse. Two other users, who went by the monikers “RockyRaccoonMD” and “Suze” criticized the way Brodie ran the local Dunkin Donuts shop.

Brodie sued Independent Newspapers (the operator of the forum) and John Does CorsicaRiver, Born & Raised Here and chatdusoleil for defamation. Absent from the list of defendants were RockyRaccoonMD and Suze.

Independent Newspapers moved to dismiss, arguing, among other things, that it was immune from suit under 47 U.S.C. §230. It also moved to quash the subpoena Brodie had served, which sought the identities of CorsicaRiver, Born & Raised Here and chatdusoleil. The court dismissed Independent Newspapers from the case, but ordered it to identify those three pseudonymous posters.

Immediately thereafter, Independent Newspapers asked the court to reconsider its order directing that the pseudonymous speakers be identified. The court granted that motion and dismissed the portion of the case dealing with the discussion of the historic farmhouse. The claims relating to the Dunkin Donuts stayed in, and the court required Independent Newspapers to disclose information concerning that.

Notwithstanding the fact that the farmhouse defamation claims had been tossed, Brodie sent a subpoena to Independent Newspapers seeking the identity of CorsicaRiver, Born & Raised Here, chatdusoleil, RockyRaccoonMD and Suze. Brodie also conceded that the only posters responsible for discussions about the Dunkin Donuts were RockyRaccoonMD and Suze. Independent Newspapers filed another motion to quash this subpoena which the court denied.

The Maryland Court of Appeals granted certiorari to hear the case. (Here’s some trivia for you: in Maryland, the Court of Appeals is the highest court. For some reason they don’t call it the Supreme Court.) On review, the court reversed the denial of the motion to quash. It held that Brodie did not have a sufficient claim of defamation against any of the pseudonymous speakers to justify revealing their actual identities.

Which standard applied

The court gave thorough and comprehensive analysis on the question of when it is appropriate for a trial court to order that an unknown defendant be unmasked. It recognized the important interests that must be balanced, and observed that courts have applied various standards regarding what a plaintiff must show before discovery of an unknown speaker will be permitted.

For example, the Delaware Supreme Court in Doe v. Cahill put forth a rigorous requirement that in addition to providing notice of the discovery being sought, a plaintiff must come forward — at the pleading stage — with facts sufficient to survive a motion for summary judgment. Other courts, such as the U.S. District Court for the Northern District of California, have set the threshold lower. In Columbia Insurance Co. v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999), the plaintiff was only required to plead facts sufficient to survive a motion to dismiss.

The New Jersey appellate court in Dendrite, Int’l. v. Doe took a more moderate approach. That court held that a plaintiff seeking the identification of an anonymous internet speaker must establish facts sufficient to maintain a prima facie case.

The Maryland court in the present case joined in the more moderate Dendrite approach, holding that when a trial court is confronted with a defamation action in which anonymous speakers or pseudonyms are involved, it should:

require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure, including posting a message of notification of the identity discovery request on the message board;
withhold action to afford the anonymous posters a reasonable opportunity to file and serve opposition to the application;
require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster, alleged to constitute actionable speech;
determine whether the complaint has set forth a prima facie defamation per se or per quod action against the anonymous posters; and
if all else is satisfied, balance the anonymous poster’s First Amendment right of free speech against the strength of the prima facie case of defamation presented by the plaintiff and the necessity for disclosure of the anonymous defendant’s identity, prior to ordering disclosure.

The Independent Newspapers case is an important case not necessarily because of any groundbreaking jurisprudence that it establishes, but because of the comprehensive way it treats the issue of unmasking unknown internet speakers. The opinion is a nearly exhaustive look at the current state of this question of law.

Anonymous photo courtesy Flickr user Neil Carey under this Creative Commons license.