Electronic Discovery Law
Citing First Amendment, Court Denies Motion to Compel Production of Information Sufficient to Identify Anonymous Discussion Board Users
McVicker v. King, 2010 WL 786275 (W.D. Pa. Mar. 3, 2010)
In this suit arising from claims of unlawful and discriminatory termination, plaintiff, a former employee of the Borough, sought to compel a third-party owner of an internet discussion board to produce information sufficient to identify anonymous authors of certain, relevant posts. Plaintiff argued the identities of the posters may be relevant to impeach defendants’ testimony regarding when the determination to terminate plaintiff was first discussed. Citing First Amendment considerations, the court denied plaintiff’s motion to compel.
The issue of when defendants learned that plaintiff filed an EEOC claim was critical to plaintiff’s claims. Based on the content of certain posts to an internet discussion board on which local government activities were discussed, plaintiff issued a subpoena seeking to compel the production of information related to the identities of the anonymous writers. Plaintiff believed that their identities would be relevant to impeach defendants’ testimony. The owner of the discussion board, Trib Total Media (“Trib”), objected and refused to produce the requested information absent court order.
Taking up the issue upon plaintiff’s motion to compel, the court noted the lack of published authority on the issue but recognized that courts had nonetheless developed “a range of standards” to address the issue and that it was “clear that a party seeking disclosure must clear a higher hurdle where the anonymous poster is a non-party.”
Dismissing plaintiffs arguments that Trib lacked standing and that the anonymous users had no expectation of privacy, the court applied a four-part test:
whether (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.
The court found the subpoena was issued in good faith and that the information sought related to a core claim in plaintiff’s case. However, the court also found that plaintiff had not demonstrated that the information sought was directly and materially relevant to the claim or defense (when defendants learned of Plaintiff’s EEOC claim). In fact, plaintiff conceded the information was instead “potentially relevant to impeachment.” The court also found that plaintiff had not demonstrated that the information was not available from other sources. In sum, the court stated:
Plaintiff's attempt to obtain the personally identifiable information of the anonymous internet speakers is a fishing expedition based on speculation that the anonymous bloggers will be able to impeach the deposition testimony of the Individual Defendants. While disclosure of the anonymous speakers' identities may certainly be helpful to Plaintiff, the Court does not believe that this is the exceptional case where the compelling need for the discovery sought outweighs the First Amendment rights of the anonymous speakers.
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