Present: Carrico, C.J., Lacy, Koontz, Kinser, and Lemons, JJ.
and Stephenson, S.J.
AMERICA ONLINE, INC.
v. Record No. 000974 OPINION BY JUSTICE DONALD W. LEMONS
March 2, 2001
ANONYMOUS PUBLICLY TRADED COMPANY
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Stanley P. Klein, Judge
In this appeal, we consider whether an anonymous litigant
may utilize the coercive powers of Virginia courts under the
Virginia Uniform Foreign Depositions Act, Code § 8.01-411 et
seq. (“UFDA”). Pursuant to Rules 4:1(c) and 4:9(c), America
Online, Inc. (“AOL”) sought to quash a subpoena duces tecum
issued to it by the Clerk of the Circuit Court of Fairfax
County and sought a protective order barring the discovery
sought by an anonymous litigant proceeding as “Anonymous
Publicly Traded Company” (“APTC”). The trial court 1 refused to
quash the subpoena duces tecum or issue a protective order.
Because the trial court abused its discretion in permitting
APTC to proceed anonymously under the UFDA, we reverse the
judgment of the trial court and remand for further
proceedings.
I. Facts and Proceedings Below
1
We will refer to the Fairfax County Circuit Court as
the “trial court” and the Marion Superior Court in Indiana as
the “Indiana court.”
APTC is a publicly traded Delaware corporation with its
principal place of business in Indianapolis, Indiana. On
February 9, 1999, APTC filed a complaint, captioned “Anonymous
Publicly Traded Company v. John Does 1 through 5,” in the
Indiana court. In its complaint, APTC asserted that the John
Doe defendants, whose identities and residences were unknown, 2
“made defamatory and disparaging material misrepresentations”
about APTC in internet chat rooms. 3 Additionally, APTC
asserted its belief that the defendants were current and/or
former employees who breached their fiduciary duties and
contractual obligations by publishing “confidential material
insider information” about APTC on the internet. Although it
did not specify what harm would be incurred by identifying
itself in the Indiana court, APTC contended that it had to
proceed anonymously “because disclosure of its true company
name will cause it irreparable harm.”
On August 11, 1999, in response to APTC’s application for
assistance in discovery and for an order authorizing discovery
in Virginia, the Indiana court issued an order permitting APTC
to “proceed with a non-party production request to America
2
APTC claimed that the John Does used pseudonyms to
protect their real names.
3
APTC defined an internet chat room as “a virtual room
on the Internet where a conversation session takes place
between individuals who often use pseudonyms to maintain
anonymity.”
2
Online, Inc. by obtaining a Subpoena Duces Tecum from the
Virginia trial courts having jurisdiction over America Online,
Inc.” The order authorized APTC to request assistance from
Virginia courts in obtaining from AOL, the names, addresses,
telephone numbers, and any other identifying information
pertaining to four AOL subscribers. In granting the request,
the Indiana court noted:
[APTC] is directed and authorized to seek
assistance of the Virginia state trial
courts for the reason that under
principles of comity and reciprocity,
under Indiana Trial Rule 28, Indiana
would, in the reverse situation, assist
Virginia residents in the discovery of
information from persons or entities
domiciled or residing in Indiana through
the assistance of subpoenas or other
matters in support of discovery procedures
and practices in the State of Virginia.
On September 3, 1999, the Clerk of the Circuit Court of
Fairfax County issued a subpoena duces tecum to AOL requesting
the names, addresses, telephone numbers, and all other
identifying information regarding the four AOL subscribers.
AOL indicated to APTC its intention to contest the issuance of
the subpoena duces tecum in part because of the anonymity of
APTC. Thereafter, APTC filed a motion in the Indiana court on
October 14, 1999, for permission to proceed anonymously until
it could amend its complaint to specifically name the John Doe
defendants.
3
AOL filed its motion to quash in the trial court on
October 15, 1999, arguing that APTC should not be permitted to
proceed until it revealed its identity. On October 19, 1999,
the Indiana court issued an order granting APTC’s motion to
proceed anonymously. The Indiana court stated that APTC:
[S]hall be allowed to proceed as anonymous
in this action up and until it determines
the identity of the Defendants and further
determines whether to proceed with this
action against the named Defendants at
which time should it determine to proceed
and file an amended complaint, in the
amended complaint [APTC] shall list itself
by its proper legal name and list those
Defendants against whom it is proceeding
by proper legal name.
The Indiana court did not conduct an evidentiary hearing and
no reasons were given for its decision, which was rendered ex
parte.
After an in camera examination of copies of the internet
postings that were the subject of the underlying litigation in
Indiana, the trial court issued an opinion and order denying
AOL’s motion to quash and request for a protective order.
Although the trial court conceded that there is a First
Amendment interest in ensuring that courts remain open to the
public, it nevertheless ruled that APTC should be permitted to
proceed anonymously. 4 Specifically, the court stated:
4
The trial court also determined that AOL had standing to
raise this issue and that APTC was required to satisfy a
4
As any First Amendment right of the
public to know the identity of the
plaintiff in the Indiana proceedings will
only be marginally affected at these
preliminary stages of those proceedings,
this Court believes that comity should be
accorded to the Indiana court’s decision,
under its Trial Rules, to allow APTC to
proceed anonymously for a limited period
of time. Although the Indiana court did
not have the benefit of a brief from AOL
when it authorized APTC to maintain its
anonymity after AOL filed the instant
motion, counsel herein agree that the
Indiana court was then aware of AOL’s
objection. In addition, at least part of
the salutary prophylactic effect of
requiring openness in judicial proceedings
has been assured by the Court’s
requirement that APTC supply copies of the
relevant Internet postings to opposing
counsel and to the Court. Both this Court
and the John Does now either know or can
readily ascertain the true identity of
APTC. Consequently, any possible abuses
of the judicial system by APTC in
initiating either the proceeding in the
Indiana court or in this Court can be
addressed by the respective courts under
applicable statutes authorizing sanctions.
Hence, this Court defers, in its analysis
of the issues before this Court, to the
Indiana court’s determination to allow
APTC to maintain its anonymity for a
limited period of time.
AOL appeals the adverse ruling of the trial court.
three-pronged test to determine whether issuance of the
subpoena would unreasonably burden the First Amendment rights
of the John Doe defendants. The trial court further
determined that APTC satisfied this test. Although AOL does
not concede that the three-pronged test sufficiently protects
free speech and privacy interests or that APTC satisfied the
requirements of the test as laid out by the trial court, it
acknowledges that these issues are not before us on appeal.
5
On appeal, AOL contends that the trial court erred in
permitting its subpoena power to be invoked by APTC without
requiring APTC to make a showing of any legitimate and
compelling need to proceed anonymously and that the trial
court should not have deferred on grounds of comity to the
Indiana court’s decision to allow APTC to proceed anonymously.
Specifically, AOL argues that the Indiana court’s ruling arose
out of a non-adversarial, ex parte proceeding in which either
no legal principles or legal principles that differ from
Virginia law and public policy were applied.
APTC contends that the trial court exercised sound
discretion in granting comity to the order of the Indiana
court. Furthermore, APTC contends that, even if comity were
not afforded the Indiana court’s order, it has a valid privacy
interest that is advanced by permitting it to anonymously
utilize the Virginia courts for discovery purposes in aid of
the Indiana litigation.
II. Standard of Review
Ordinarily, a trial court’s discovery orders are not
subject to review on direct appeal because they are not final
within the contemplation of Code § 8.01-670. However, an
order granting or refusing a motion to quash or issue a
protective order, in a proceeding brought in a court of this
6
Commonwealth pursuant to the UFDA, is a final order subject to
appellate review.
The original and appellate jurisdiction of the Supreme
Court of Virginia is conferred by Article VI, § 1 of the
Constitution of Virginia which provides in part that, subject
to constitutional limitations, “the General Assembly shall
have the power to determine the original and appellate
jurisdiction of the courts of the Commonwealth.” The UFDA
does not provide for appeal of orders pursuant to its
provisions; consequently, we must look to Code § 8.01-670 for
the source of the Court’s appellate jurisdiction in this
matter. Because this matter arises on the law side rather
than the chancery side of the Circuit Court, the Court’s
authority to review the order of the trial court is found in
Code § 8.01-670(A) which enumerates particular matters which
may be the subject of appeal and concludes with subsection (3)
which provides appellate jurisdiction over any matter where a
“person” is “aggrieved . . . [b]y a final judgment in any
other civil case.”
An action under the UFDA is a separate action, distinct
from, although ancillary to, the underlying cause of action in
the foreign jurisdiction. In the case before us, when the
trial court rendered its order, it disposed of every aspect of
the case before it and settled all issues raised by the
7
parties. In Warford v. Childers, 642 S.W.2d 63 (Tex. Ct. App.
1982), the Texas Court of Appeals, applying statutory language
identical to that adopted in the Virginia UFDA statute, 5 held
that the resolution of the discovery dispute was a final,
appealable judgment.
To hold that such an order is
interlocutory and non-appealable would
forever foreclose review by the orderly
process of appeal and would relegate the
parties to an extraordinary proceeding.
Obviously, the order cannot be reviewed by
this court as part of an appeal from a
final judgment of the [foreign] court and
cannot be reviewed by the [foreign]
appellate court under any circumstances.
Thus, although the order may have an
interlocutory relationship with the
[foreign] suit, we conclude that it is a
final judgment on all issues in
controversy in Texas and that we have
jurisdiction to review it by appeal.
Id. at 66. See also, Lougee v. Grinnell, 582 A.2d 456 (Conn.
1990), overruled on other grounds by State v. Salmon, 735 A.2d
333 (Conn. 1999).
We agree with the reasoning of our sister states, Texas
and Connecticut, and conclude that under the UFDA, an order of
the trial court disposing of all issues before it and
concluding the entirety of the proceedings in a Virginia
court, is a final order subject to appeal under Code § 8.01-
670. Discovery orders in suits brought in Virginia are
5
Tex. Rev. Civ. Stat. Ann. art. 3769a (Vernon Supp.
8
interlocutory and not subject to immediate appeal. Such
orders are subject to appellate review at the conclusion of
the underlying suit. 6
We review the trial court’s refusal to quash the issuance
of a subpoena duces tecum or issue a protective order under an
abuse of discretion standard. O’Brian v. Langley Sch., 256
Va. 547, 552, 507 S.E.2d 363, 366 (1998) (noting that,
“[g]enerally, the granting or denying of discovery is a matter
within the discretion of the trial court”).
III. Analysis
Virginia has adopted the UFDA, which provides in part:
Whenever any mandate, writ or commission
is issued out of any court of record in
any other state, territory, district or
foreign jurisdiction, or whenever upon
notice or agreement it is required to take
the testimony of a witness or witnesses or
produce or inspect designated documents in
this Commonwealth, witnesses may be
compelled to appear and testify and to
produce and permit inspection or copying
of documents in the same manner and by the
same process and proceeding as may be
employed for the purpose of taking
testimony or producing documents in
proceedings pending in this Commonwealth.
Code § 8.01-411. This legislative provision is rooted in
principles of comity and provides a mechanism for discovery of
1981).
6
Of course, we have previously recognized that an order
of contempt for disobedience of a discovery order may be
9
evidence in aid of actions pending in foreign jurisdictions.
Some states have adopted the UFDA while others have adopted
the Uniform Interstate and International Procedure Act.
Additionally, some states have modeled their rules of civil
procedure after the Federal Rules and still others have
crafted their own unique rules concerning discovery
proceedings in aid of foreign litigation. 7
Under the UFDA, reciprocity is required, and the
“privilege extended to persons in other states by § 8.01-411
shall only apply to those states which extended the same
privilege to persons in this Commonwealth.” Code § 8.01-412.
We have previously recognized reciprocity with the state of
Indiana based upon the UFDA. See Smith v. Givens, 223 Va.
455, 460, 290 S.E.2d 844, 847 (1982).
The initial question for decision in this case is whether
the trial court erred in finding that the UFDA and principles
of comity permit APTC to utilize the coercive power of
Virginia courts while remaining anonymous. We have no
reluctance to show due deference to the orders of the Indiana
courts on any occasion when the circumstances are proper for
appealed pursuant to Code § 19.2-318. See HCA Health Services
of Virginia v. Levin, 260 Va. 215, 530 S.E.2d 417 (2000).
7
For a survey of the laws concerning foreign depositions
in the 50 states and the District of Columbia, see The
Virginia Law Foundation, Civil Discovery in Virginia, Chapter
7 (1999).
10
the application of the principles of comity. We do not think
this is one of those occasions.
In the case before us, the trial judge carefully reviewed
the record and required an in camera review of the allegedly
tortious internet chat room postings presumably to verify the
bona fides of the underlying action in the Indiana court. The
legitimacy of the underlying claim is an issue separate and
distinct from permitting a plaintiff to proceed anonymously.
In the ultimate analysis, on the basis of comity, the trial
court deferred to the Indiana court’s determination to permit
APTC to proceed anonymously for a “limited period of time” and
denied AOL’s motion to quash and for a protective order.
As we have previously noted:
Virginia courts should grant comity to any
order of a foreign court of competent
jurisdiction, entered in accordance with
the procedural and substantive law
prevailing in its judicatory domain, when
that law, in terms of moral standards,
societal values, personal rights, and
public policy, is reasonably comparable to
that of Virginia.
Oehl v. Oehl, 221 Va. 618, 623, 272 S.E.2d 441, 444 (1980).
We have also stated:
Comity is not a matter of obligation.
It is a matter of favor or courtesy, based
on justice and good will. It is permitted
from mutual interest and convenience, from
a sense of the inconvenience which would
otherwise result, and from moral necessity
to do justice in order that justice may be
11
done in return. Comity is not given effect
when to do so would prejudice a State’s
own rights or the rights of its citizens.
McFarland v. McFarland, 179 Va. 418, 430, 19 S.E.2d 77, 83
(1942) (internal quotation marks omitted).
While fully appreciating the importance of comity as a
guiding principle in the relationship between sovereigns and
as a tool of judicial economy, we have recognized limitations
upon its application. Before according the privilege of
comity, we have required a showing of personal and subject
matter jurisdiction, Oehl, 221 Va. at 623, 272 S.E.2d at 444,
that “the procedural and substantive law applied by the
foreign court [was] reasonably comparable to that of
Virginia,” id., that the decree was not “falsely or
fraudulently obtained,” McFarland, 179 Va. at 430, 19 S.E.2d
at 83, that the order sought to be enforced was not “contrary
to the morals or public policy of this State,” id., and that
the enforcement of the order would not “prejudice [Virginia’s]
own rights or the rights of its citizens,” Eastern Indem. Co.
v. Hirschler, Fleischer, Weinberg, Cox & Allen, 235 Va. 9, 15,
366 S.E.2d 53, 56 (1988) (citations omitted).
The action filed in Indiana is unique. The plaintiff is
anonymous, as are all five John Doe defendants. 8 Although the
8
APTC seeks discovery of the identity of only four of the
John Doe defendants in the Virginia proceeding.
12
pleading certainly invokes the subject matter jurisdiction of
the Indiana court, it is uncertain whether personal
jurisdiction may be obtained over any of the anonymous
defendants. Further, while the Indiana court permitted APTC
to proceed anonymously, it is clear that no hearing was held
concerning the question, no evidence was received by the
court, 9 no reasons for the decision were given, and the order
permitting anonymous maintenance of the action was granted in
a non-adversarial, ex parte proceeding. Significantly,
because no evidence was received and no reasons for the
decision were given by the Indiana court, we cannot determine
whether the procedural and substantive law applied by the
Indiana court was “reasonably comparable to that of Virginia.”
See Oehl, 221 Va. at 623, 272 S.E.2d at 444. Accordingly, we
find that these circumstances do not present a situation where
comity should be granted to the Indiana court’s order
permitting APTC to proceed anonymously.
Irrespective of the question of comity, a Virginia trial
court may conduct an independent inquiry concerning anonymous
maintenance of an action. Although there are several reported
cases in Virginia wherein a plaintiff proceeded anonymously,
9
An affidavit of counsel to APTC was filed in support of
the motion to proceed anonymously. The affidavit recites what
the unnamed client believes and offers counsel’s gratuitous
conclusion that his client’s beliefs are reasonable.
13
the issue of anonymity was resolved by consent and never
presented to this Court. 10 Accordingly, we must decide, for
the first time, the circumstances under which a plaintiff may
proceed anonymously in Virginia courts.
Over half a century has passed since the United States
Supreme Court noted, “[a] trial is a public event. . . . There
is no special perquisite of the judiciary which enables it, as
distinguished from other institutions of democratic
government, to suppress, edit, or censor events which
transpire in proceedings before it.” Craig v. Harney, 331
U.S. 367, 374 (1947). However, “[t]he equation linking the
public’s right to attend trials and the public’s right to know
the identity of the parties is not perfectly symmetrical.”
Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. 1981).
Accordingly, there is no absolute bar to a plaintiff
proceeding anonymously. In exceptional cases, “the need for
party anonymity overwhelms the presumption of disclosure
mandated by procedural custom.” Id. Upon proper
circumstances, courts must balance the need for anonymity
10
We noted in A.H. v. Rockingham Publ’g Co., 255 Va. 216,
219 n.2, 495 S.E.2d 482, 484 n.2 (1998), that “[b]ecause this
claim arises out of a sexual assault on a minor, the plaintiff
used a pseudonym to protect his identity.” See also Doe v.
Doe, 222 Va. 736, 284 S.E.2d 799 (1981); Baby Doe v. John and
Mary Doe, 15 Va. App. 242, 421 S.E.2d 913 (1992); C.P. v.
Rockingham Publ’g Co., 34 Va. Cir. 79 (1994); Jane and John
14
against the general presumption that parties’ identities are
public information and the risk of unfairness to the opposing
party. See Does I Thru XXIII v. Advanced Textile Corp., 214
F.3d 1058, 1068 (9th Cir. 2000). As the Eleventh Circuit has
stated, “[t]he ultimate test for permitting a plaintiff to
proceed anonymously is whether the plaintiff has a substantial
privacy right which outweighs the customary and
constitutionally-embedded presumption of openness in judicial
proceedings. It is the exceptional case in which a plaintiff
may proceed under a fictitious name.” Doe v. Frank, 951 F.2d
320, 323 (11th Cir. 1992) (citation and internal quotation
marks omitted).
In a review of decisions from throughout the country, the
Fourth Circuit compiled a list of “factors that should be
considered by courts considering anonymity requests.” James
v. Jacobson, 6 F.3d 233, 238 (4th Cir. 1993). Such factors
included:
[W]hether the justification asserted by
the requesting party is merely to avoid
the annoyance and criticism that may
attend any litigation or is to preserve
privacy in a matter of sensitive and
highly personal nature; whether
identification poses a risk of retaliatory
physical or mental harm to the requesting
party or even more critically, to innocent
non-parties; the ages of the persons whose
Roe v. Richmond Metro. Blood Serv., Inc., 22 Va. Cir. 111
(1990).
15
privacy interests are sought to be
protected; whether the action is against a
governmental or private party; and,
relatedly, the risk of unfairness to the
opposing party from allowing an action
against it to proceed anonymously.
Id. Types of cases in which plaintiffs have been permitted to
proceed anonymously in other courts in the nation include
birth control cases, abortion cases, welfare cases involving
illegitimate children, and cases involving issues of
homosexuality. See Doe v. Deschamps, 64 F.R.D. 652, 653
(D. Mont. 1974) (citing Roe v. Wade, 410 U.S. 113
(1973) (abortion); Doe v. Gillman, 347 F.Supp. 483 (N.D. Iowa
1972) (child born out of wedlock); Doe v. Chafee, 355 F.Supp.
112 (N.D. Cal. 1973) (homosexuality)).
The limited situations in which a plaintiff has been
permitted to proceed under a pseudonym involve “the presence
of some social stigma or the threat of physical harm to the
plaintiffs attaching to disclosure of their identities to the
public record.” Doe v. Rostker, 89 F.R.D 158, 161 (N.D. Cal.
1981). A common thread throughout these decisions is that the
likelihood of the plaintiff suffering some embarrassment or
economic harm is not enough by itself to permit anonymity.
Doe v. Goldman, 169 F.R.D. 138, 141 (D. Nev. 1996); Doe v.
Hallock, 119 F.R.D. 640, 644 (S.D. Miss. 1987); Doe v.
Rostker, 89 F.R.D. at 163; Doe v. Diocese Corp., 647 A.2d
16
1067, 1071 (Conn. Super. Ct. 1994); A.B.C. v. XYZ Corp. and
XYZ Co., 660 A.2d 1199, 1204 (N.J. Super. Ct. 1995). However,
as the Ninth Circuit Court of Appeals noted in Does I Thru
XXIII v. Advanced Textile Corp., 214 F.3d at 1070, the
proposition that anonymity may never be used to protect
against economic harm is “incorrect as a matter of law.”
Rather, in some instances, the level of retaliation in the
form of economic harm may rise to an extraordinary level
permitting plaintiffs to proceed anonymously. Id. at 1071.
Rule 3:3 of the Rules of the Supreme Court of Virginia
embraces the normative principle of disclosure and requires
the “names” of the parties to be stated in pleadings.
However, like other courts that have considered the issue, we
recognize that there are certain circumstances when permitting
a plaintiff to proceed under a pseudonym must be entrusted to
the sound discretion of the trial court. We are persuaded
that the factors considered by the Fourth Circuit in James,
while not exhaustive, are appropriate for consideration by
state courts in Virginia. Accordingly, we hold that, upon
showing of special circumstances when a party’s need for
anonymity outweighs the public’s interest in knowing the
party’s identity and outweighs the prejudice to the opposing
party, a court may exercise its discretion to allow a party to
proceed anonymously. Further, we recognize that circumstances
17
may change as litigation progresses, thereby requiring
reconsideration of initial rulings.
In the case before us, the sole reason APTC has offered
in support of its request to proceed anonymously is fear of
economic harm. While reasonable concern over potential
economic harm is not excluded from factors to consider, APTC
has not borne its burden to show special circumstances
justifying anonymity.
In its motion to proceed anonymously, APTC claimed that,
“the filing of this lawsuit under the proper and correct legal
name for the Plaintiff, where Plaintiff at this time is unable
to identify the Defendants, will trigger publicity about this
lawsuit, which Plaintiff believes will damage the value of the
corporation.” Later, in a hearing before the trial court,
when the attorney for APTC was asked by the court why APTC
should not be required to identify itself, the response was:
[F]or better or for worse, it may not be a
good judgment, but my client made a
business judgment that it would be
extremely harmful to the corporation and
to the shareholders of that corporation,
which the corporation has a duty to
protect, to file a lawsuit in Indiana
saying we — and naming yourself — are
being defamed. We are having our trade
secrets misappropriated. We are being
defrauded, and by the way, we can’t even
tell you, the public, who’s doing it.
My client made the corporate decision
in its business judgment — right or wrong
— that that would hurt the shareholders.
18
Significantly, the conclusory nature of APTC’s reasons for
anonymity does not reveal the degree and nature of the
potential economic harm. APTC would have the trial court
trust its decision rather than submit evidence so that an
independent judicial evaluation can be made concerning the
need for anonymity.
Accordingly, we will reverse the order of the trial court
denying the relief sought by AOL and remand for further
proceedings consistent with this opinion.
Reversed and remanded.
19