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(Present: Carrico, C.J., Lacy, Hassell, Koontz, Kinser, and )Tj
0 -1.2 TD
(Lemons, JJ., and Stephenson, S.J.)Tj
0 -2.4 TD
(AMERICA ONLINE, INC.)Tj
0 -1.2 TD
( OPINION BY)Tj
T*
(v. Record No. 012761 JUSTICE LAWRENCE L. KOONTZ, JR.)Tj
T*
( November 1, 2002)Tj
T*
(NAM TAI ELECTRONICS, INC.)Tj
0 -3.6 TD
(FROM THE CIRCUIT COURT OF LOUDOUN COUNTY)Tj
0 -1.2 TD
(Thomas D. Horne, Judge)Tj
0 -2.4 TD
(In this appeal and in the context of the Uniform Foreign )Tj
0 -1.2 TD
(Depositions Act, Code 8.01-411 through -412.1 \(UFDA\), we )Tj
0 -1.2 TD
(consider whether a Virginia trial court properly applied )Tj
T*
(principles of comity in refusing to quash a subpoena duces tecum )Tj
T*
(obtained under a commission for out-of-state discovery issued by )Tj
T*
(a California trial court.)Tj
T*
(BACKGROUND)Tj
T*
(On January 26, 2001, Nam Tai Electronics, Inc. \(Nam Tai\) )Tj
T*
(filed a complaint in the Superior Court of the State of )Tj
T*
(California for the County of Los Angeles \(the California court\) )Tj
T*
(against fifty-one unknown individuals alleging libel, trade )Tj
T*
(libel, and violations of California Business and Professions )Tj
T*
(Code Section 17000 et seq. \(California's unfair business )Tj
T*
(practices statutes\). In summary, Nam Tai alleged that the )Tj
T*
(unknown individuals had posted "false, defamatory, and otherwise )Tj
0 -1.2 TD
(unlawful messages" on an Internet message board devoted to )Tj
T*
(discussion of Nam Tai's publicly traded stock.)Tj
T*
(The message board was maintained by Yahoo! Inc. \(Yahoo\), an )Tj
T*
(Internet services company located in California. The message )Tj
T*
(board was available to be viewed by any Internet user. However, )Tj
T*
(in order to post a message an Internet user must first establish )Tj
T*
(a Yahoo account, for which the company does not charge a fee, )Tj
T*
(and create a "login name," which is subsequently used to )Tj
T*
(identify the user when posting messages on the service. In its )Tj
T*
(complaint, Nam Tai identified one of the unknown defendants by )Tj
T*
(the Yahoo login name "scovey2." Attached to the complaint was a )Tj
T*
(printout of a single message posted by "scovey2" to the message )Tj
T*
(board devoted to Nam Tai's stock. Dated as having been posted )Tj
T*
(on January 8, 2001 at 10:03 p.m. Eastern Standard Time, the )Tj
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(message was titled "sinking again," and read as follows:)Tj
0 -1.2 TD
(Sinking is not a province in China but an observation )Tj
T*
(of this company's stock market performance. This low )Tj
0 -1.2 TD
(tech crap that they produce is in an extremely )Tj
0 -1.2 TD
(competitive and low profitability industry. I see )Tj
T*
(see-sawing of the stock with no real direction. \(See-)Tj
T*
(sawing is also not a province.\))Tj
0 -2.4 TD
(Nam Tai alleged that this message "among others" posted by )Tj
0 -1.2 TD
("scovey2" was part of a concerted effort by the unknown )Tj
T*
(defendants to defame Nam Tai in order to discourage investors )Tj
T*
(from purchasing or holding stock in Nam Tai. Nam Tai further )Tj
T*
(alleged, in part, that the defendants' intent was to "interfere )Tj
T*
(with [Nam Tai's] relationship with its shareholders and the )Tj
0 -1.2 TD
(general public and to manipulate the price of Nam Tai stock to )Tj
0 -1.2 TD
(their advantage." It further alleged that the acts of the )Tj
T*
(defendants "constitute unlawful, unfair, and deceptive business )Tj
T*
(practices against [Nam Tai] . . . in violation of" California's )Tj
T*
(unfair business practices statutes. Nam Tai sought both )Tj
T*
(compensatory and punitive monetary damages and injunctive )Tj
T*
(relief. )Tj
T*
(Following the filing of the complaint, Nam Tai obtained a )Tj
T*
(subpoena duces tecum in California directing Yahoo to disclose )Tj
T*
(its subscriber data on "scovey2." Based on the information )Tj
T*
(subsequently disclosed by Yahoo, Nam Tai was able to determine )Tj
T*
(that "scovey2" obtained his Internet access through America )Tj
T*
(Online, Inc. \(AOL\), an online services company that also serves )Tj
0 -1.2 TD
(as a portal site to the Internet. Specifically, Yahoo disclosed )Tj
T*
(the Internet protocol \(IP\) address used by "scovey2" to access )Tj
T*
(Yahoo's Nam Tai message board on January 8, 2001 and the )Tj
T*
("alternate email address" given by "scovey2" when registering )Tj
T*
(for a Yahoo login name. The Internet protocol address recorded )Tj
T*
(when "scovey2" posted the January 8, 2001 message was )Tj
T*
("152.163.194.186," which is registered to AOL. The alternate )Tj
T*
(email address "scovey2" supplied to Yahoo was "scovey@aol.com.")Tj
T*
(Nam Tai obtained a commission for out-of-state discovery )Tj
T*
(from the California court to depose AOL's custodian of records. )Tj
T*
(AOL's principal corporate offices are located in Loudoun County )Tj
T*
(and, accordingly, the commission was directed to a registered )Tj
T*
(court reporting service authorized to take depositions within )Tj
T*
(Virginia. On March 19, 2001, Virginia counsel for Nam Tai filed )Tj
T*
(a praecipe in the Circuit Court of Loudoun County \(the trial )Tj
T*
(court\) for a foreign subpoena duces tecum. On the same date, )Tj
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(present case was plainly wrong in determining that Nam Tai had )Tj
0 -1.2 TD
(stated a cause of action pursuant to that statutory scheme.)Tj
T*
( Having resolved the issues raised by AOL in favor of Nam )Tj
T*
(Tai, we need not consider the assignments of cross-error raised )Tj
T*
(by Nam Tai in this appeal.)Tj
T*
( )Tj
0 -2.4 TD
(19)Tj
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(19)Tj
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(the clerk of the trial court issued the subpoena directing AOL's )Tj
0 -1.2 TD
(custodian of records to produce, among other things, records )Tj
T*
(related to the opening of the account assigned the email address )Tj
0 -1.2 TD
("scovey@aol.com" and "[d]ocuments sufficient to identify the AOL )Tj
0 -1.2 TD
(customer or subscriber . . . assigned the AOL Internet Protocol )Tj
T*
(Address 152.163.194.186 . . . on January 8, 2001, at 10:03 PM )Tj
T*
(EST.")Tj
T*
(On April 17, 2001, AOL filed a motion to quash Nam Tai's )Tj
0 -1.2 TD
(subpoena duces tecum. In that pleading, AOL acknowledged that )Tj
T*
(counsel for Nam Tai had provided it with a copy of a second )Tj
T*
(message, posted by "scovey2" on June 3, 1999, which criticized )Tj
T*
(the company's stock trading practices and accused Nam Tai's )Tj
T*
(president of "manipulat[ing] the stock [of] this and other )Tj
T*
(smaller companies." AOL contended that it should not be )Tj
0 -1.2 TD
(required to reveal subscriber information because this would )Tj
0 -1.2 TD
("infringe on the well-established First Amendment right to speak )Tj
T*
(anonymously," and that Nam Tai could not meet the heightened )Tj
T*
(scrutiny required to overcome that right. AOL further contended )Tj
T*
(that the First Amendment protection applied to all claims made )Tj
T*
(in Nam Tai's California complaint, including the statutory )Tj
T*
(unfair business practices claim.)Tj
T*
(On April 27, 2001, Nam Tai filed a brief opposing AOL's )Tj
T*
(motion to quash. Nam Tai contended that AOL was seeking a )Tj
T*
(review of both the procedural process already approved by the )Tj
T*
(California court and a substantive review of the merits of the )Tj
T*
(underlying cause of action stated in the California complaint. )Tj
T*
(Nam Tai asserted that principles of comity required the trial )Tj
0 -1.2 TD
(court to give deference to the procedures used in obtaining the )Tj
T*
(commission from the California court. Nam Tai further asserted )Tj
T*
(that "scovey2" had been notified by AOL of the subpoena, but had )Tj
T*
(not joined in the motion to quash. Thus, Nam Tai contended that )Tj
T*
(AOL did not have standing to challenge the merits of the )Tj
T*
(underlying claim.)Tj
T*
(On May 1, 2001, AOL filed a reply to Nam Tai's brief )Tj
T*
(opposing AOL's motion to quash. AOL contended that Nam Tai had )Tj
T*
(not met the criteria for applying principles of comity because )Tj
T*
(Nam Tai could not show that its California complaint stated a )Tj
T*
(viable cause of action. AOL further contended that the absence )Tj
T*
(of the real party in interest did not deprive AOL of standing to )Tj
T*
(challenge the underlying merits of the case because the notice )Tj
T*
(to "scovey2" was informal and that "scovey2" might have elected )Tj
T*
(not to join the motion for strategic or economic reasons. )Tj
T*
(Following a hearing on May 4, 2001, the trial court, )Tj
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(relying on America Online, Inc. v. Anonymous Publicly Traded )Tj
0 -1.2 TD
(Co., 261 Va. 350, 542 S.E.2d 377 \(2001\) \(hereinafter AOL v. )Tj
T*
(APTC\), determined that before enforcing Nam Tai's subpoena it )Tj
0 -1.2 TD
(was required to "determine whether comity should be granted to )Tj
0 -1.2 TD
(the California court's Order and, if not, whether the subpoena )Tj
T*
(should nevertheless be enforced in light of the merits of Nam )Tj
T*
(Tai's underlying California law-based claims." Having )Tj
T*
(determined that it could not address either issue "without )Tj
0 -1.2 TD
(further guidance from the California court," the trial court )Tj
T*
(entered a protective order barring the discovery until it had )Tj
T*
(received and reviewed "guidance from the California court . . . )Tj
T*
(with respect to the procedural and substantive law applicable to )Tj
T*
(the California court's Order.")Tj
T*
(Responding to the trial court's request for guidance, the )Tj
0 -1.2 TD
(California court made the following findings in an order dated )Tj
0 -1.2 TD
(June 22, 2001 clarifying the commission for out-of-state )Tj
T*
(discovery:)Tj
T*
(1. That Nam Tai has alleged sufficient facts in its )Tj
T*
(complaint, under California law, for libel, trade )Tj
T*
(libel and for injunctive relief under California )Tj
T*
(Business and Professions Code Section 17200, such )Tj
T*
(that Nam Tai is entitled under California law to )Tj
T*
(conduct discovery to identify the anonymous )Tj
T*
(defendant in this matter notwithstanding the First )Tj
T*
(Amendment privacy concerns raised in AOL's motion )Tj
T*
(to quash.)Tj
0 -2.4 TD
(2. That, under the facts and circumstances of this )Tj
0 -1.2 TD
(case, the First Amendment privacy concerns of the )Tj
T*
(anonymous defendant are outweighed by the State of )Tj
T*
(California's interest in the ability of its )Tj
T*
(litigants to conduct out-of-state discovery.)Tj
0 -2.4 TD
(3. This Court reaffirms its March 15, 2001, Order for )Tj
0 -1.2 TD
(the issuance of a commission for out-of-state )Tj
T*
(discovery notwithstanding the concerns raised in )Tj
T*
(AOL's motion to quash related to the First )Tj
T*
(Amendment privacy rights of the anonymous defendant )Tj
T*
(and the sufficiency of the allegations in Nam Tai's )Tj
T*
(complaint.)Tj
0 -2.4 TD
(In making these findings, the California court apparently )Tj
0 -1.2 TD
(reviewed the briefs and arguments made in the trial court as )Tj
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(previously recited herein. Accordingly, the California court )Tj
0 -1.2 TD
(was aware of, and may have considered, the content of the June )Tj
T*
(3, 1999 message, although the content of that message and )Tj
0 -1.2 TD
(allegations related to it had not been included in Nam Tai's )Tj
0 -1.2 TD
(complaint.)Tj
T*
(Following a subsequent teleconference, during which the )Tj
T*
(parties stated arguments that essentially parallel the positions )Tj
T*
(asserted in this appeal, the trial court issued an opinion )Tj
0 -1.2 TD
(letter dated August 7, 2001. Applying the standards enunciated )Tj
T*
(in AOL v. APTC, the trial court first concluded that "[n]either )Tj
T*
(of the defamation claims would withstand demurrer if filed in )Tj
T*
(Virginia." Thus, the trial court concluded that comity did not )Tj
T*
(require enforcement of the subpoena as to those claims because )Tj
T*
("it would facilitate process not otherwise available to )Tj
0 -1.2 TD
(litigants in the Commonwealth." In reaching this conclusion, )Tj
0 -1.2 TD
(the trial court focused solely on the January 8, 2001 message )Tj
T*
(and did not consider the alleged defamatory content of the June )Tj
T*
(3, 1999 message.)Tj
T*
(The trial court determined, however, that the statutory )Tj
T*
(unfair business practices claim stated in the California )Tj
T*
(complaint "is not offensive to the public policy of Virginia and )Tj
T*
(states a claim predicated upon an alleged malicious interference )Tj
T*
(with the operation of [Nam Tai's] business." Relying on Chaves )Tj
T*
(v. Johnson, 230 Va. 112, 122, 335 S.E.2d 97, 103 \(1985\), the )Tj
T*
(trial court concluded that the First Amendment concerns )Tj
T*
(expressed by AOL were not applicable to this claim. Based upon )Tj
T*
(this reasoning, in an order dated September 11, 2001, the trial )Tj
0 -1.2 TD
(court denied AOL's motion to quash, lifted the protective order )Tj
T*
(previously entered, and directed AOL to comply with the subpoena )Tj
T*
(duces tecum. We awarded AOL this appeal and accepted )Tj
T*
(assignments of cross-error raised by Nam Tai.)Tj
T*
(DISCUSSION)Tj
T*
("We review the trial court's refusal to quash the issuance )Tj
T*
(of a subpoena duces tecum . . . under an abuse of discretion )Tj
T*
(standard." AOL v. APTC, 261 Va. at 359, 542 S.E.2d at 382; see )Tj
T*
(also O'Brian v. Langley School, 256 Va. 547, 552, 507 S.E.2d )Tj
T*
(363, 366 \(1998\).)Tj
T*
(The issues of comity central to this appeal arise from the )Tj
T*
(trial court's application of the UFDA. Relevant to those )Tj
T*
(issues, Code 8.01-411 provides that:)Tj
T*
(Whenever any mandate, writ or commission is )Tj
T*
(issued out of any court of record in any other state )Tj
T*
(. . . witnesses may be compelled to appear and testify )Tj
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(and to produce and permit inspection or copying of )Tj
0 -1.2 TD
(documents in the same manner and by the same process )Tj
T*
(and proceeding as may be employed for the purpose of )Tj
0 -1.2 TD
(taking testimony or producing documents in proceedings )Tj
0 -1.2 TD
(pending in this Commonwealth.)Tj
0 -2.4 TD
(Code 8.01-412 requires that "[t]he privilege extended to )Tj
0 -1.2 TD
(persons in other states by 8.01-411 shall only apply to those )Tj
T*
(states which extended the same privilege to persons in this )Tj
T*
(Commonwealth." Although California has repealed its version of )Tj
T*
(the UFDA, it has enacted California Code of Civil Procedure )Tj
T*
(Section 2029, which provides for the same privileges to out-of-)Tj
T*
(state parties as does the UFDA. Accordingly, we hold that )Tj
T*
(California is a reciprocal state for purposes of applying the )Tj
T*
(UFDA in Virginia to a commission for out-of-state discovery from )Tj
T*
(a court of that state. See Smith v. Givens, 223 Va. 455, 460, )Tj
T*
(290 S.E.2d 844, 847 \(1982\) \(recognizing UFDA reciprocal status )Tj
T*
(of Indiana based upon equivalent process available under Indiana )Tj
T*
(Trial Procedure Rule 28\(E\)\).)Tj
T*
(In AOL v. APTC, we recognized "the importance of comity as )Tj
T*
(a guiding principle in the relationship between sovereigns and )Tj
T*
(as a tool of judicial economy." 261 Va. at 361, 542 S.E.2d at )Tj
T*
(383. Nonetheless, comity has its limitations and will not be )Tj
T*
("given effect when to do so would prejudice [Virginia's] own )Tj
T*
(rights or the rights of its citizens." McFarland v. McFarland, )Tj
T*
(179 Va. 418, 430, 19 S.E.2d 77, 83 \(1942\).)Tj
T*
(Drawing on our prior case law examining questions of )Tj
T*
(comity, we have stated the principles that must be considered by )Tj
0 -1.2 TD
(the trial court before affording comity to an order of a foreign )Tj
T*
(court. First, the foreign court must have personal and subject )Tj
T*
(matter jurisdiction to enforce its order within its own )Tj
T*
(judicatory domain. Second, the procedural and substantive law )Tj
T*
(applied by the foreign court must be reasonably comparable to )Tj
T*
(that of Virginia. Third, the foreign court's order must not )Tj
T*
(have been falsely or fraudulently obtained. And, fourth, )Tj
T*
(enforcement of the foreign court's order must not be contrary to )Tj
T*
(the public policy of Virginia, or prejudice the rights of )Tj
T*
(Virginia or her citizens. See AOL v. APTC, 261 Va. at 361, 542 )Tj
T*
(S.E.2d at 383, and cases cited therein. Guided by these )Tj
T*
(principles in the present case, we will address seriatim each of )Tj
T*
(the "numerous deficiencies" in the California court's commission )Tj
T*
(alleged by AOL.)Tj
T*
(Initially, we note that AOL does not contest the subject )Tj
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(matter jurisdiction of the California court over the claims )Tj
0 -1.2 TD
(asserted in Nam Tai's lawsuit. Rather, AOL first contends that )Tj
T*
(the California court did not have "jurisdiction over any party )Tj
0 -1.2 TD
(other than Nam Tai itself." Nam Tai responds that California )Tj
0 -1.2 TD
(law permits the filing of a "John Doe" lawsuit against an )Tj
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(unknown defendant pending discovery of the defendant's identity )Tj
T*
(and the appropriate amendment of the pleading. See California )Tj
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(Code of Civil Procedure Section 474.)Tj
0 -1.2 TD
(In AOL v. APTC, we observed that where, as here, an action )Tj
T*
(is filed against unknown parties, "it is uncertain whether )Tj
T*
(personal jurisdiction may be obtained over any of the anonymous )Tj
T*
(defendants." 261 Va. at 361, 542 Va. at 383. We recognize, )Tj
T*
(however, that it is not uncommon for a plaintiff to use the )Tj
T*
("John Doe" pleading style to initiate a lawsuit against a )Tj
0 -1.2 TD
(defendant whose identity is unknown at the time the lawsuit is )Tj
0 -1.2 TD
(filed for the purpose of subsequently using discovery to learn )Tj
T*
(the identity of the defendant so that proper service of process )Tj
T*
(on the defendant can be obtained. See Code 8.01-290. )Tj
T*
(Accordingly, for the purpose of determining whether to afford )Tj
T*
(comity to the California court's commission, we need not be )Tj
T*
(concerned with whether that court will ultimately be able to )Tj
T*
(exercise personal jurisdiction over the unidentified defendant )Tj
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(in this case. Rather, because the procedural requirements for )Tj
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(maintaining suits against unknown defendants in California are )Tj
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(reasonably comparable to those in Virginia in the context of the )Tj
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(present case, we hold that comity is not barred on that ground. )Tj
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(AOL next contends that the ex parte proceedings in the )Tj
0 -1.2 TD
(California court resulted in "a superficial or abstract )Tj
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(judgment" that "was not the product of a full-fledged, )Tj
T*
(adversarial consideration of the First Amendment issues at the )Tj
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(core of this matter." Thus, AOL asserts that "[t]hese are )Tj
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(plainly not the circumstances in which a Virginia court should )Tj
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(defer to the findings of a foreign court." AOL does not contend )Tj
T*
(that the California court's commission was obtained falsely or )Tj
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(fraudulently, but only that, due to the ex parte nature of the )Tj
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(proceedings, "there is no indication that the California court )Tj
T*
(devoted any substantive attention" to the issues.)Tj
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(Unlike AOL v. APTC, where no clarifying order was requested )Tj
T*
(by the Virginia trial court, 261 Va. at 356, 542 S.E.2d at 381, )Tj
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(the record here supports the conclusion that, upon application )Tj
T*
(for the clarifying order, the California court undertook a )Tj
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(review of the record developed in Virginia and issued its order )Tj
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(issues asserted by AOL in its pleadings filed in the trial )Tj
0 -1.2 TD
(court. Moreover, it is clear that the trial court did not )Tj
T*
(arbitrarily defer to the California court, as AOL implies, but )Tj
0 -1.2 TD
(undertook its own analysis of the issues with respect to their )Tj
0 -1.2 TD
(viability under the law of Virginia, and in doing so gave proper )Tj
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(consideration to the adversarial proceedings before it. Under )Tj
T*
(these circumstances, we find no abuse of discretion by the trial )Tj
T*
(court in accepting those elements of the California court's )Tj
0 -1.2 TD
(clarifying order which supported the ultimate determination to )Tj
T*
(grant comity based on one of the three claims approved by the )Tj
T*
(California court.)Tj
T*
(AOL next contends that the California court did not )Tj
T*
(properly apply the substantive law of California in ruling that )Tj
T*
(First Amendment concerns did not apply to the alleged violation )Tj
0 -1.2 TD
(of California Business and Professions Code Section 17200. AOL )Tj
0 -1.2 TD
(premises its contention that the California court misapplied )Tj
T*
(California law by citing a series of cases beginning with Blatty )Tj
T*
(v. New York Times Co., 728 P.2d 1177 \(Cal. 1986\), where the )Tj
T*
(state and federal courts in California have rejected attempts to )Tj
T*
(bring non-defamation tort actions where the "gravamen [of the )Tj
T*
(underlying action] is the alleged injurious falsehood of a )Tj
T*
(statement," and, where the statement in question qualified as )Tj
T*
(protected speech under the First Amendment. Id. at 1180.)Tj
T*
(It is not, however, the role of the Virginia courts when )Tj
T*
(asked to afford comity to an order of a court of a foreign )Tj
T*
(jurisdiction to act as surrogates for the appellate courts of )Tj
T*
(that jurisdiction. We presume that the foreign court is in a )Tj
0 -1.2 TD
(better position than the Virginia courts to determine the )Tj
T*
(substantive law of its jurisdiction and, thus, afford a high )Tj
T*
(degree of deference to its judgment in such matters. Such )Tj
T*
(deference is particularly appropriate where, as here, the )Tj
T*
(foreign court enters a clarifying order specifically addressing )Tj
T*
(the substantive law of its judicatory domain upon which the )Tj
T*
(proceedings there are premised. The determination whether to )Tj
T*
(grant comity to such an order is not a matter of the ultimate )Tj
T*
(viability of the underlying claim in the foreign jurisdiction )Tj
T*
(but, rather, whether the substantive law of the foreign )Tj
T*
(jurisdiction as addressed and expressed by the foreign court in )Tj
T*
(its clarifying order is "in terms of moral standards, societal )Tj
T*
(values, personal rights, and public policy . . . reasonably )Tj
T*
(comparable to that of Virginia." Oehl v. Oehl, 221 Va. 618, )Tj
T*
(623, 272 S.E.2d 441, 444 \(1980\).)Tj
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(Finally, AOL contends that the trial court erred in )Tj
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(determining that the law applied by the California court with )Tj
0 -1.2 TD
(respect to Nam Tai's statutory unfair business practices claim )Tj
T*
(is reasonably comparable to the law of Virginia. AOL premises )Tj
0 -1.2 TD
(this contention upon the assertion that the trial court's )Tj
0 -1.2 TD
(reliance on Chaves was misplaced. AOL specifically asserts that )Tj
T*
(Chaves has been called into question by the United States )Tj
T*
(Supreme Court's holding in Hustler Magazine, Inc. v. Falwell, )Tj
T*
(485 U.S. 46, 56 \(1988\), that First Amendment protections apply )Tj
0 -1.2 TD
(even though a suit alleging an injurious publication is filed )Tj
T*
(under a theory of intentional infliction of emotional distress )Tj
T*
(rather than defamation.)Tj
T*
(In Chaves, we stated that:)Tj
T*
(The tort complained of here is an intentional )Tj
T*
(wrong to the property rights of another, accomplished )Tj
0 -1.2 TD
(by words, not defamatory in themselves, but employed )Tj
0 -1.2 TD
(in pursuance of a scheme designed wrongfully to enrich )Tj
T*
(the speaker at the expense of the victim. The law )Tj
T*
(provides a remedy in such cases, and the )Tj
T*
(constitutional guarantees of free speech afford no )Tj
T*
(more protection to the speaker than they do to any )Tj
T*
(other tortfeasor who employs words to commit a )Tj
T*
(criminal or a civil wrong.)Tj
0 -2.4 TD
(230 Va. at 122, 335 S.E.2d at 103.)Tj
0 -1.2 TD
(Unquestionably, since the Hustler Magazine decision, some )Tj
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(courts have sustained challenges to tort litigation on the )Tj
T*
(ground that the plaintiff was seeking to "avoid the protection )Tj
0 -1.2 TD
(afforded by the Constitution . . . merely by the use of creative )Tj
T*
(pleading." Beverly Hills Foodland, Inc. v. United Food & )Tj
T*
(Commercial Workers Union, 39 F.3d 191, 196 \(8th Cir. 1994\) )Tj
T*
(\(claim that union tortiously interfered with employer's right to )Tj
T*
(contract was subject to First Amendment considerations\). )Tj
T*
(However, in Maximus, Inc. v. Lockheed Information Management )Tj
T*
(Systems Co., 254 Va. 408, 412, 493 S.E.2d 375, 377 \(1997\), a )Tj
T*
(decision rendered after Hustler Magazine, we acknowledged "the )Tj
T*
(similarity . . . [of] the defamation law construct to business )Tj
T*
(torts" noted in Chaves, but declined to extend First Amendment )Tj
T*
(protections to a tortious interference with a contract )Tj
T*
(expectancy cause of action.)Tj
T*
(The First Amendment concerns applicable to the law of )Tj
T*
(California considered by the California court in this case are )Tj
T*
(the same concerns applicable to the law of Virginia. Those )Tj
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(courts rather than in the Virginia courts. Given that the )Tj
0 -1.2 TD
(holding in the Maximus case clearly supports the proposition )Tj
T*
(that Chaves is sound precedent, we cannot say that the trial )Tj
0 -1.2 TD
(court erred in determining that Nam Tai's statutory cause of )Tj
0 -1.2 TD
(action for unfair business practices under California law is )Tj
T*
(reasonably comparable to the law of Virginia and is not )Tj
T*
(repugnant to the public policy of Virginia. Accordingly, we )Tj
T*
(hold that the trial court did not abuse its discretion in )Tj
0 -1.2 TD
(concluding that the California court's commission for out-of-)Tj
T*
(state discovery was entitled to comity and, thus, properly )Tj
T*
(denied AOL's motion to quash the subpoena duces tecum issued in )Tj
T*
(support of that commission.)Tj
T*
(CONCLUSION)Tj
T*
(For these reasons, we will affirm the judgment of the trial )Tj
0 -1.2 TD
(court enforcing the California court's commission for discovery )Tj
0 -1.2 TD
(of AOL's records regarding "scovey2." )Tj
T*
(Affirmed.)Tj
T*
( Because no defendant was identified with specificity, Nam )Tj
T*
(Tai's complaint has not been served on any party, and all the )Tj
T*
(proceedings in the California court have occurred ex parte.)Tj
0 -2.4 TD
( Although Yahoo requires its users to provide certain )Tj
0 -1.2 TD
(personal information when registering, it does not attempt to )Tj
T*
(verify the accuracy of the information provided. Yahoo )Tj
T*
(discloses in a privacy statement that it will "respond to )Tj
T*
(subpoenas, court orders, or legal process" requiring it to )Tj
T*
(disclose registration and usage information.)Tj
0 -2.4 TD
( An IP address is a string of four integer numbers between )Tj
0 -1.2 TD
(0 and 255 separated by periods that identifies the location of a )Tj
T*
(specific computer connected to the Internet. While many )Tj
T*
(Internet connections are permanent and, thus, are assigned fixed )Tj
T*
(IP addresses, the IP address assigned to a personal computer )Tj
T*
(accessing the Internet through a portal site is drawn from a )Tj
T*
(pool of open addresses and identifies that computer only during )Tj
T*
(the time that computer is connected to the Internet.)Tj
0 -2.4 TD
( As AOL noted, this message was not set forth, referenced )Tj
0 -1.2 TD
(in, or attached to Nam Tai's complaint. On appeal, Nam Tai )Tj
T*
(assigns cross-error to the trial court's failure to consider )Tj
T*
(this message in ruling on AOL's motion to quash.)Tj
0 -2.4 TD
( Subsequent to the proceedings in the trial court, the )Tj
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(General Assembly enacted Code 8.01-407.1, which, effective )Tj
0 -1.2 TD
(July 1, 2002, set procedures governing the right of an anonymous )Tj
T*
(Internet user to receive notice of discovery directed at seeking )Tj
0 -1.2 TD
(his identity and providing the method for the user to oppose )Tj
0 -1.2 TD
(that discovery. Neither party asserts that this statute impacts )Tj
T*
(the issues raised in this appeal.)Tj
T*
( Nam Tai also asserts that AOL did not raise this specific )Tj
T*
(argument in the trial court and, thus, it should not be )Tj
0 -1.2 TD
(considered for the first time on appeal. Rule 5:25. However, )Tj
T*
(for purposes of this appeal, we will assume, without deciding, )Tj
T*
(that AOL's arguments in the trial court opposing the subpoena )Tj
T*
(duces tecum were sufficiently broad to challenge the trial )Tj
T*
(court's entire analysis of the request for comity. )Tj
T*
( AOL notes on brief that in Nam Tai Electronics, Inc. v. )Tj
0 -1.2 TD
(Titzer, the California Court of Appeals has ruled that personal )Tj
0 -1.2 TD
(jurisdiction could not be had over an out-of-state defendant, )Tj
T*
(originally named as a "John Doe," where that defendant lacked )Tj
T*
(sufficient contacts with California. 113 Cal. Rptr. 2d 769, )Tj
T*
(774-76 \(Cal. Ct. App. 2001\). Because the identity of "scovey2" )Tj
T*
(has not been clearly established and no factual determinations )Tj
T*
(concerning his contacts with California have been made, it is )Tj
T*
(not possible to determine at this time whether the rationale of )Tj
T*
(Titzer would be applicable to the present case.)Tj
0 -2.4 TD
( AOL also contends that the California court lacks personal )Tj
0 -1.2 TD
(jurisdiction over AOL. However, we need not consider whether )Tj
T*
(California's long-arm statute would permit it to exercise )Tj
0 -1.2 TD
(jurisdiction over AOL on the facts of this case for the obvious )Tj
T*
(reason that AOL is not being subjected to the personal )Tj
T*
(jurisdiction of the California court, but to that of the trial )Tj
T*
(court under the UFDA. Indeed, it is self-evident that the UFDA )Tj
T*
(and its equivalent in California exist principally to permit the )Tj
T*
(courts of foreign jurisdictions, through comity, to extend the )Tj
T*
(reach of their discovery proceedings to third parties not )Tj
T*
(immediately within their jurisdiction.)Tj
0 -2.4 TD
( We do not mean to suggest, however, that deference should )Tj
0 -1.2 TD
(be given to the judgment of a foreign court that is plainly )Tj
T*
(wrong. Because the scope of California's unfair business )Tj
T*
(practices statutes is broad and the authority for a California )Tj
T*
(trial court to determine whether a cause of action falls within )Tj
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(its scope is equally broad, Kasky v. Nike, Inc., 45 P.3d 243, )Tj
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