Posted by Eugene Volokh:
Procedural Protection in Discovery of Confidential Sources?
http://volokh.com/archives/archive_2009_08_09-2009_08_15.shtml#1250208228
[1]Solers, Inc. v. Doe, decided today by the D.C. Court of Appeals,
strikes me as a very important case for litigators. The facts:
Appellant Solers, Inc. �is a for-profit Virginia corporation with
its principal place of business in Arlington, Virginia. [Its] work
principally consists of developing software and other technology
for agencies within the Department of Defense.� Solers is a
privately held company, owned by its employees.
Appellee SIIA describes itself as �the principal trade association
for the software and digital content industry� and explains that
�[o]ne of [its] chief missions is to protect the intellectual
property of member companies by fighting the software piracy that
threatens to undermine the entire industry.� While Solers� work is
primarily in the same industry that SIIA seeks to protect, Solers
is not a member of SIIA.
In order �[t]o fulfill its mission, SIIA [has] established an
Anti-Piracy Division and developed anti-piracy programs involving
both education and enforcement.� �SIIA�s enforcement program
enables sources with knowledge of software piracy to report
anonymously to SIIA via telephone or the Internet about companies
[committing piracy] ....� To encourage reporting, �SIIA allows
individuals to submit information ... on a confidential basis.�
Through this program, John Doe, an �individual,� reported that
Solers was engaged in illegal activity. Accusations of copyright
infringement followed, and Solers sued Doe but has not been able to
learn his or her identity.
The question is whether Solers could just subpoena SIIA for
information that would help Solers learn Doe's identity, so that
Solers can sue Doe. Under standard discovery rules, subpoenaing third
parties for information that helps uncover a potential defendant's
identityis generally just fine, so long as the information is likely
to lead to the discovery of relevant evidence (surely so as to the
identity of a defendant).
But in recent cases involving online libel, courts (in cases such as
[2]Doe v. Cahill and [3]Krinsky v. Doe 6) have developed doctrines
that [4]help protect anonymous speakers against revelation of their
identity. Most court decisions in this field conclude that while in
principle the speakers could be unmasked, the plaintiffs must
generally show that there's some potential merit to their case.
That way, a company that doesn't like some criticisms, and suspects
that the criticisms were posted by an employee, can't just sue on some
trumped-up legal theory, discover who posted the criticisms, and then
drop the lawsuit and fire the employee. On the other hand, if a
company does have a credible case (e.g., for disclosure of trade
secrets, libel, and so on), it would be able to use subpoenas to try
to discover the identity of the speaker, once it shows a court that
there is indeed a credible case. (All this is limited to subpoenas as
other coercive discovery techniques: If the third party, such as the
SIIA in this instance, is willing to turn over the information
voluntarily, this test doesn't apply, and the turnover is just fine,
in the absence of some promise by the third party to keep matters
confidential, or some other confidentiality obligation such as a
statutory prohibition on disclosure absent a subpoena.) Solers applies
this principle beyond anonymous postings aimed at the whole world, and
to anonymous tips given to a private organization. Even in such cases,
the D.C. Circuit Court of Appeals holds,
When presented with a motion to quash (or to enforce) a subpoena 10
which seeks the identity of an anonymous defendant, the court
should: (1) ensure that the plaintiff has adequately pleaded the
elements of the defamation claim, (2) require reasonable efforts to
notify the anonymous defendant that the complaint has been filed
and the subpoena has been served, (3) delay further action for a
reasonable time to allow the defendant an opportunity to file a
motion to quash, (4) require the plaintiff to proffer evidence
creating a genuine issue of material fact on each element of the
claim that is within its control, and (5) determine that the
information sought is important to enable the plaintiff to proceed
with his lawsuit.
It seems likely that the same would apply not just to defamation
claims but also to other claims in other fact patterns, such as claims
that a confidential source has breached a confidentiality agreement,
revealed a trade secret, or infringed copyright. It might even apply
(though the matter is less clear) when the plaintiff simply claims
that the source has some information that's relevant to a lawsuit
against someone else altogether, and that the plaintiff wants to
identify the source to then subpoena him for that information.
The court says that it's not deciding anything outside the context of
defamation cases, and other "alleged injur[ies]" that are "a
consequence of the defamation" (such as the alleged interference with
business relations involved here). But the logic of the court's
opinion would apply to many situations involving anonymous speakers,
and not just those who are accused of libel.
And this is especially so because whatever the plaintiff's current
claim, an anonymous source might worry that the plaintiff might sue
the source for defamation if the source's identity is revealed.
Limiting the protection against subpoenas to cases where there's
already a defamation lawsuit would thus undermine whatever benefit
such protection is supposed to provide.
This may all be quite sensible, or it might not be. My point is that
this is a very important step that should be of interest to litigators
in a wide range of cases, even ones far afield from the public speech
context in which the anonymous speaker protection doctrine arose.
References
1. http://www.dcappeals.gov/dccourts/appeals/pdf/07CV159_MTD.PDF
2.
http://courts.delaware.gov/Opinions/(ppcl1xqxikf23mqimbm0qh45)/Download.aspx?ID=67130
3. http://volokh.com/posts/1213219224.shtml
4. http://volokh.com/posts/1203638137.shtml
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
