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In re Subpoena Duces Tecum to America Online, Inc.

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."

A publicly-traded company commenced an action in Indiana against five John Does arising out of their alleged publication in AOL chat rooms of both material that defamed plaintiff, as well as confidential and material insider information concerning plaintiff's operations. The information was posted anonymously. In an effort to obtain the identity of the individuals who posted this information, plaintiff obtained an order from the Indiana court in which the defamation suit was pending which authorized plaintiff to take discovery from AOL in Virginia, and requested that the Virginia courts issue a subpoena to AOL.

AOL moved before the Virginia courts to quash this subpoena under Virginia Supreme Ct. Rule 4:9(c) which provides, in pertinent part, that "the court, upon written motion promptly made by the person so required to produce, or by the party against whom such production is sought, may quash or modify the subpoena if it is unreasonable and oppressive." For the reasons discussed below, the court denied this motion.

The Virginia court held that despite principles of comity (pursuant to which the courts of one state generally honor orders issued by the courts of another state without analyzing their merits), the court would not defer to the ruling of the Indiana court directing the issuance of the subpoena in question without analyzing the propriety of such issuance on the merits.

The court next held that AOL had standing to seek to quash the subpoena at issue, which called for AOL to provide identifying information concerning anonymous postings by its subscribers. This ruling was based, in part, on the negative impact a decision mandating discovery would have on AOL, given its subscribers' expectation that AOL will protect the anonymity of their chat room communications. It was also based on the court's recognition that the subscribers themselves may not have the financial wherewithal to protect themselves, and that to do so may require them to identify themselves, which would nullify the very right sought to be protected.

Under Virginia Rule 4.9(c), a subpoena will be quashed when it is "(1) an unreasonable request in light of all the circumstances surrounding the subpoena (2) that produces an oppressive effect on the entity challenging the subpoena."

The court held that the subpoena at issue would have an oppressive effect on AOL. Said the court:

It can not be seriously questioned that those who utilize the "chat rooms" and "message boards" of AOL do so with an expectation that the anonymity of their postings and communications generally will be protected. If AOL did not uphold the confidentiality of its subscribers, as it has contracted to do, absent extraordinary circumstances, one could reasonably predict that AOL subscribers would look to AOL's competitors for anonymity. As such, the subpoena duces tecum at issue potentially could have an oppressive effect.

However, the court concluded that AOL failed to make the requisite showing that the subpoena was an "unreasonable request in light of all the circumstances surrounding the subpoena."

The issue here was "whether the issuance of the subpoena ... and the potential loss of anonymity of the John Does would constitute an unreasonable intrusion on their First Amendment rights." The court recognized that Internet users have a First Amendment right to anonymous communications on the Internet.

To fail to recognize that the First Amendment right to speak anonymously should be extended to communications on the Internet would require this Court to ignore either United States Supreme Court precedent or the realities of speech in the twenty-first century. This Court declines to do either and holds that the right to communicate anonymously on the Internet falls within the scope of the First Amendment's protections.

However, such rights are not absolute, and do not include the right to defame another. The court recognized that "the state of Indiana clearly has a compelling state interest to protect companies operating within its borders from ..." defamation and the improper dissemination of confidential information.

The appropriate balance between these two competing interests, determined the court, was to require that the party seeking discovery make "a showing sufficient to enable [the] court to determine that a true, rather than perceived, cause of action may exist" before the court directs that discovery, which will reveal the identity of the anonymous poster, proceed. Said the court:

[T]his Court holds that, when a subpoena is challenged under a rule akin to Virginia Supreme Court Rule 4:9(c), a court should only order a non-party, Internet service provider to provide information concerning the identity of a subscriber (1) when the court is satisfied by the pleadings or evidence supplied to that court (2) that the party requesting the subpoena has a legitimate, good faith basis to contend that it may be the victim of conduct actionable in the jurisdiction where suit was filed and (3) the subpoenaed identity information is centrally needed to advance that claim.

Finding that the plaintiff had met this burden, in part, based on its provision to the court of a number of the allegedly offending postings at issue, the court denied AOL's motion to quash, and directed it to comply with the subpoena at issue.

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