Filed 5/14/14
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
DIGITAL MUSIC NEWS LLC, B242700
Petitioner, (Los Angeles County
Super. Ct. No. SS022099)
v.
SUPERIOR COURT OF LOS ANGELES
COUNTY,
Respondent;
ESCAPE MEDIA GROUP, LLC,
Real Party in Interest.
Petition for extraordinary writ. Richard Stone, Judge. Petition is granted.
McKenna Long & Aldridge, Charles A. Bird; Public Citizen Litigation Group,
Paul Alan Levy; Micah Gabriel Katz for Petitioner.
No appearance for Respondent.
McPherson Rane, Edwin F. McPherson and Pierre B. Pine; Rosenberg & Giger,
John J. Rosenberg for Real Party in Interest.
_______________
Escape Media Group (Escape) operates an Internet service called Grooveshark
through which users may upload and retrieve digital music files. UMG Recordings, Inc.
owns an extensive music catalog that includes songs by such artists as Buddy Holly, The
Jackson 5, Marvin Gaye, and The Who. In 2010, UMG sued Escape in the Supreme
Court of the State of New York, alleging Escape infringed on copyrights afforded by
New York common law by reproducing user-uploaded, copyrighted sound recordings,
storing them on its servers, and distributing copies to other users, to its own profit.
Escape denied liability, asserting its conduct was permissible under federal copyright
law.
Digital Music News (Digital) publishes the online newsletter Digital Music News,
which focuses on the digital music industry. In 2011, Digital Music News reported that a
music artist unaffiliated with UMG had also accused Escape of copyright infringement.
The article was followed by approximately 100 reader comments, two of which
are of interest here. In them, a reader identified only as “Visitor” represented he or she
was an Escape employee and routinely received “direct orders from the top” to upload
music to its servers, where it was stored and made available to third party users and never
removed, even if artists or music labels complained.
Under the auspices of the Supreme Court of the State of New York, County of
New York, Escape served a subpoena on Digital (which is not a party to the litigation
between UMG and Escape), seeking Visitor’s identity. When Digital refused to comply,
Escape petitioned the Los Angeles Superior Court pursuant to the Interstate and
International Depositions and Discovery Act, Code of Civil Procedure section 2029, et
seq., for enforcement. The court ordered Digital to comply with the subpoena, from
which order Digital now appeals.
Digital argues information identifying Visitor will not reasonably lead to the
discovery of admissible evidence in the New York lawsuit and is protected by Visitor’s
right to privacy. We agree with both contentions, and will therefore issue a writ of
mandate directing the trial court to vacate its order enforcing Escape’s subpoena.
2
Statement of Facts
1. The New York Lawsuit
Grooveshark enables third party users to upload, share, download and stream files
containing audio recordings. On January 6, 2010, UMG sued Escape in New York state
court for state common law copyright infringement and unfair competition, alleging
Escape enabled and encouraged Grooveshark users to upload unauthorized copies of
UMG’s recordings to Grooveshark, which Escape then copied to its servers and
subsequently distributed to other Grooveshark users. (UMG Recordings v. Escape Media
Group (Supreme Ct. New York County, 2010, No. 100152).)1
Escape denied the allegations and asserted a number of affirmative defenses and
counterclaims. Among other defenses, Escape claimed immunity under the Digital
Millennium Copyright Act (DMCA), which shields from federal copyright infringement
liability an Internet service provider that hosts solely third party user materials, so long as
it promptly removes copyrighted materials when it becomes aware of the infringement.2
(17 U.S.C. § 512(a)-(c).) On April 23, 2013, this defense was ordered stricken by the
Appellate Division of the Supreme Court of New York on the ground that DMCA affords
immunity only against federal copyright claims, not state common law claims. (UMG
Recs., Inc. v. Escape Media Group, Inc. (N.Y. App.Div. 1st Dep’t 2013) 107 A.D.3d 51,
59.) In its answer, Escape also asserted counterclaims for interference with Escape’s
1
In its state lawsuit, UMG sought redress only as to recordings created prior to
February 15, 1972. This is because the Copyright Act of 1976, title 17 United States
Code section 101, et seq., expressly preempts state law copyright protections on material
recorded on or after February 15, 1972. (17 U.S.C. § 301(a) & (c).)
2
Title II of the DMCA, the Online Copyright Infringement Liability Limitation
Act, 17 U.S.C. § 512, et seq., creates a safe harbor for an online service provider against
copyright infringement liability if the provider meets specified requirements, one of
which is the provider must promptly block access to alleged infringing material or
remove the material from its systems when it receives notification of an infringement
claim from a copyright holder.
3
contracts, interference with its business relations, and anti-competitive conduct, alleging
UMG caused other companies to end their business relationships with Escape.3
In October 2011, Digital Music News reported on an email exchange between
Escape executives and a member of a rock band who had complained that Grooveshark
illegally hosted the band’s copyrighted recordings and refused to take them down. In the
comments section of this article, Visitor claimed to “work for Grooveshark” and stated
“the administration” required employees to upload files to the Grooveshark database,
which contradicted Escape’s claim that it hosted solely third party recordings as
permitted by the DMCA. The next day, Visitor4 commented that although Grooveshark
administrators purported to remove copyrighted music when record labels and artists
complained, the music was not actually deleted but merely put on “backup,” to be made
available at a later time, when the complaining party’s attention turned elsewhere.
3
We deny Digital’s request for judicial notice of copyright infringement lawsuits
brought against Escape by other music companies, as these cases are irrelevant to the
issues before us. (See Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal.App.4th
471, 482 [“We also may decline to take judicial notice of matters that are not relevant to
dispositive issues on appeal”].)
4
It is possible the anonymous comments were written by two different authors.
Because the parties assume one author wrote both comments, we will also.
4
Visitor stated the music was in fact never deleted: “[T]o confirm the fears of
[complaining musicians], there is no way in hell you can get your stuff down.” 5
2. The Subpoena and Enforcement
On January 9, 2012, Escape served Digital with a subpoena in the New York
action for the production of business records, seeking information concerning Visitor’s
identity and communications between Digital and UMG concerning, or documents
relating to, Escape, Grooveshark, or the October 2011 Digital Music News article.
Digital objected to the subpoena and notified Escape that any information about Visitor’s
5
On October 17, 2011, Visitor said: “I work for [Escape]. Here is some
information from the trenches: [¶] We are assigned a predetermined amount of weekly
uploads to the system and get a small extra bonus if we manage to go above that (not
easy). The assignments are assumed as direct orders from the top to the bottom, we don’t
just volunteer to ‘enhance’ the . . . database. [¶] All search results [user searches of the
database] are monitored and when something is tagged as ‘not available’, it get’s [sic]
queued up to our lists for upload. You have to visualize the database in two general
sections: ‘known’ stuff and ‘undiscovered/indie/underground’. The ‘known’ stuff is
taken care internally by uploads. Only for the ‘undiscovered’ stuff are the users involved
as explained in some posts above. Practically speaking, there is not much need for users
to upload a major label album since we already take care of this on a daily basis. [¶] Are
the above legal, or ethical? Of course not. Don’t reply to give me a lecture. I know. But
if the labels and their laywers [sic] can’t figure out how to stop it, then I don’t feel bad for
having a job. It’s tough times. [¶] Why am I disclosing all this? Well, I have been here
a while and I don’t like the attitude that the administration has aquired [sic] against the
artists. They are the enemy. They are the threat. The things that are said internally about
them would make you very very angry. Interns are promised getting a foot in the music
industry, only to hear these people cursing and bad mouthing the whole industry all day
long, to the point where you wonder what would happen if [the Web site] gets hacked by
Anonymous one day and all the emails leak on some torrent or something. [¶] And, to
confirm the fears of the members of [the complaining music artist], there is no way in
hell you can get your stuff down. They are already tagged since you sent in your first
complaint. The administration knows that you can’t afford to sue for infringement.”
On October 18, 2011, Visitor said: “Just because you can’t see an album available
right now, doesn’t mean it’s not sitting quietly in the background. It is policy to put
albums on ‘backup’, when they have to be taken down due to a [copyright claim], to chill
things out with the labels and what not. The albums are not deleted, if that’s what you
guys think.”
5
identity had been deleted as part of Digital’s routine business practice of periodically
overwriting data.
On March 20, 2012, Escape petitioned the Los Angeles County Superior Court to
enforce the subpoena under the Interstate and International Depositions and Discovery
Act, Code of Civil Procedure section 2029 et seq.6 Digital opposed the petition, arguing
the subpoena was moot because any information that would identify Visitor had been
overwritten, enforcement of the subpoena would infringe on the First Amendment rights
of Digital and Visitor, and disclosure would violate California’s journalist shield law
(Cal. Const., art. I, § 2, subd. (b); Evid. Code, § 1070).7 In reply, Escape argued Digital
had no basis for refusing to comply with the subpoena because the First Amendment does
not protect false and defamatory anonymous speech.
Although Digital denied any discoverable material remained on its servers, the
trial court found a possibility existed that fragmented data identifying Visitor might yet
be retrieved. The court also found Escape established a prima facie case that Visitor’s
comments were libelous, and thus unprotected by the First Amendment. The court
concluded Visitor’s identity was therefore discoverable and ordered Digital to comply
with the subpoena.8
The trial court subsequently issued a supplemental order addressing the
compliance process. The court ordered Escape to purchase and provide Digital with a
6
All further statutory references are to the Code of Civil Procedure unless
otherwise indicated.
7
On appeal, Digital has abandoned its argument under California’s journalist
shield law.
8
The court ordered Digital to produce: “[A]ny and all business records
(including, without limitation, e-mail files, databases, logs of activity on computer
systems and/or content and information contained within the [Digital] website or
administrative panel, or any backup copies of the data from within either) that [Digital]
has concerning the” first and second anonymous comments, or its author, the person
identified by the pseudonym Visitor. The court’s order did not address the portion of the
subpoena seeking communications and/or documents concerning Escape, Grooveshark,
or the October 2011 Digital Music News article. Escape has not pursued that discovery.
6
backup server, and ordered Digital to preserve a virtual machine image of its server on
the backup server and make the image available to a third party forensic examiner under
court supervision. The examiner would first indicate to Digital whether any identifying
information was present and then reveal such information to Escape if directed to do so
by the court. Escape would pay all expenses related to the data preservation and
inspection. Once the inspection was complete, the backup server would be expunged of
any material.9
Digital timely appealed both orders and we issued a writ of supersedeas staying
discovery. Pursuant to our request, the parties submitted supplemental letter briefs
addressing whether section 2017.010 and the California Constitution’s right of privacy
preclude discovery of Visitor’s identity.
Discussion
1. Standard of Review
Pursuant to the Interstate and International Depositions and Discovery Act, a party
to a proceeding in a foreign jurisdiction may obtain discovery in California by retaining a
local attorney to issue a subpoena. (§ 2029.350.) If a dispute arises relating to the
subpoena, any party may petition the superior court where the discovery is to be
conducted for a protective order or an order enforcing, quashing, or modifying the
subpoena. (§ 2029.600.) Such an order may be reviewed only by petition to the Court of
Appeal for an extraordinary writ. (§ 2029.650, subd. (a).) Although Digital filed an
appeal here, we deem the appeal to be a writ petition.
A discovery order is reviewed under the deferential abuse-of-discretion standard.
(Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154, 1161.) An appellate court may reverse a
trial court decision for abuse of discretion when the trial court “applies the wrong legal
standards applicable to the issue at hand.” (Doe 2 v. Superior Court (2005) 132
Cal.App.4th 1504, 1517.)
9
Currently, Digital has transferred a virtual machine image of its server to the
backup server provided by Escape, but no other action has been taken.
7
2. California discovery law prohibits disclosure of Visitor’s identity
Although discovery sought under the Interstate and International Depositions and
Discovery Act is intended for use in a foreign jurisdiction, it is nevertheless governed by
California’s Civil Discovery Act, section 2016.010 et seq. (§ 2029.500.) Section
2017.010 of that act sets forth the permissible scope of discovery in California: “[A]ny
party may obtain discovery regarding any matter, not privileged, that is relevant to the
subject matter involved in the pending action . . . if the matter either is itself admissible in
evidence or appears reasonably calculated to lead to the discovery of admissible
evidence.” (§ 2017.010.) A party may also obtain discovery of “the identity and location
of persons having knowledge of any discoverable matter, as well as of the existence,
description, nature, custody, condition, and location of any document [or] electronically
stored information . . . .” (Ibid.)
An appellate court may reverse a trial court’s grant of discovery if it concludes the
information sought “cannot as a reasonable possibility lead to the discovery of admissible
evidence or be helpful in preparation for trial.” (Forthmann v. Boyer (2002) 97
Cal.App.4th 977, 988-989.) Only relevant evidence is admissible. (Evid. Code, § 350.)
Relevant evidence is that which has a “tendency in reason to prove or disprove any
disputed fact that is of consequence to the determination of the action.” (Evid. Code, §
210.)
“Although the scope of civil discovery is broad, it is not limitless.” (Calcor Space
Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 223.) Discovery devices
must “be used as tools to facilitate litigation rather than as weapons to wage litigation.”
(Id. at p. 221.) A party seeking to compel discovery must therefore “set forth specific
facts showing good cause justifying the discovery sought.” (§ 2031.310, subd. (b)(1); see
Calcor Space Facility, Inc. v. Superior Court, supra, 53 Cal.App.4th at p. 223.) To
establish good cause, a discovery proponent must identify a disputed fact that is of
consequence in the action and explain how the discovery sought will tend in reason to
prove or disprove that fact or lead to other evidence that will tend to prove or disprove
the fact.
8
The facts of consequence in the New York lawsuit between UMG and Escape may
be found in UMG’s complaint and Escape’s affirmative defenses and counterclaims.
In the New York lawsuit, UMG alleges Escape infringed on its common law
copyrights and engaged in unfair competition. “A copyright infringement cause of action
in New York consists of two elements: (1) the existence of a valid copyright; and (2)
unauthorized reproduction of the work protected by the copyright.” (Capitol Records,
Inc. v. Naxos of Am., Inc. (2005) 4 N.Y.3d 540, 563.) A cause of action for unfair
competition predicated on copyright infringement, “in addition to unauthorized copying
and distribution requires competition in the marketplace or similar actions designed for
commercial benefit [citations], or deception of the public [citation].” (Id. at pp. 563-564.)
UMG alleges Escape “enables and encourages its users to upload digital copies” of
UMG’s recordings to Grooveshark, then copies those recordings to its servers and
distributes them to other users. By doing so, Escape infringes on UMG’s copyrights and
unfairly competes with UMG for commercial benefit.
In its answer, Escape denies the allegations and contends its conduct is permitted
under the DMCA. Title II of that act provides in pertinent part: “A service provider shall
not be liable . . . for infringement of copyright by reason of” transmission or storage of
transitory digital information so long as the transmission or storage is done “at the
direction of a person other than the service provider,” is “carried out through an
automatic technical process without selection of the material by the service provider,”
and does not result in copies of the material being maintained on the system or network
“for a longer period than is reasonably necessary for the transmission.” (17 U.S.C. §
512(a) & (b).) To enjoy this immunity, a service provider who becomes aware of
infringing material on its network must “respond[] expeditiously to remove, or disable
access to, the material.” (17 U.S.C. § 512(c)(1)(C).) As stated above, Escape’s DMCA
defense was ordered stricken by the appellate division of the New York Supreme Court.
Escape also counterclaims for interference with its contracts and business relations
and anti-competitive conduct. Under New York law, “[t]o sustain a claim for tortious
interference with a contract, it must be established that a valid contract existed which a
9
third party knew about, the third party intentionally and improperly procured the breach
of the contract[,] and the breach resulted in damage to the plaintiff.” (Ullmannglass v.
Oneida, Ltd. (2011) 927 N.Y.S.2d 702, 705.) Where there has been no breach of an
existing contract, but only interference with prospective contract rights, the plaintiff must
show the defendant’s conduct amounted to a crime or an independent tort. (Carvel Corp.
v. Noonan (2004) 3 N.Y.3d 182, 190.) Escape alleges UMG has engaged in a “legal
jihad” in which it coerces third party companies to breach their contracts with Escape and
terminate beneficial relationships, the goal being “to destroy Escape by cutting off [its]
sources of revenue.”
It was not readily apparent to us how the identity of Visitor, who, similar to UMG,
claimed Escape routinely violated copyrights on sound recordings, would lead to
admissible evidence refuting UMG’s allegations or supporting Escape’s defenses or
counterclaims. We therefore asked Escape to explain in a supplemental brief how
discovery of Visitor’s identity was reasonably calculated to lead to the discovery of
admissible evidence.
Escape first states without elaboration that Visitor’s identity is “most assuredly”
relevant to Escape’s DMCA defense. This is a conclusion, not an explanation, much less
a showing of specific facts demonstrating discovery of Visitor’s identity is reasonably
calculated to lead to admissible evidence. To establish its DMCA defense Escape would
have had to prove, among other things, that it removes copyrighted material when
informed of an infringement. Escape fails to explain how the identity of Visitor—who
claims the opposite—would lead to evidence supporting the defense.
In any event, Escape’s DMCA defense was ordered stricken by the Appellate
Division of the New York State Supreme Court, which held the defense immunizes a
service provider only from federal copyright claims, not state common law claims such as
those at issue here. The defense therefore raises no currently disputed “fact that is of
consequence to the determination of the action” (Evid. Code, § 210), rendering Visitor’s
comments irrelevant.
10
Escape insists that the viability of its DMCA defense “is far from resolved with
either finality or certainty,” because in Capitol Records v. Vimeo (S.D.N.Y. Dec. 31,
2013) 2013 U.S.Dist. Lexis 181882 (Vimeo), the United States District Court for the
Southern District of New York certified an interlocutory appeal on the DMCA immunity
issue to the United States Court of Appeals for the Second Circuit. But this merely
establishes the possibility that Escape’s DMCA defense might someday be reinstated—
assuming the Second Circuit accepts the Vimeo appeal, and rules DMCA immunity
applies to state common law claims, and Escape moves on that basis to reinstate its
DMCA defense, and the New York Supreme Court grants the motion. Speculation about
a remote-in-time possibility does not constitute reasonable calculation that discovery will
lead to evidence concerning a fact currently in dispute.
Escape next argues Visitor’s comments are relevant to any claim by UMG that
Escape may be secondarily liable for infringement of UMG’s copyrights. Escape argues
it must identify Visitor “as a predicate to exposing the Anonymous Comments as false,”
which will refute any allegation that Escape knew about or supervised direct infringement
of UMG’s copyrights by Escape employees.
The argument is meritless. First, UMG makes no allegation pertaining to
secondary liability based on the conduct of Escape’s employees. Rather, it alleges
Escape enables Grooveshark users to upload music, which is then copied, stored, and
distributed to other users. “Relevant evidence” means evidence “having any tendency in
reason to prove or disprove any disputed fact that is of consequence to the determination
of the action.” (Evid. Code, § 210, italics added.) Escape’s operation of Grooveshark in
the manner UMG alleges is not in dispute, as Escape expressly admitted the practice in its
answer. The only issue is whether the practice violates UMG’s copyrights, which is a
11
question of law, not fact. Although Escape contends Visitor’s comments are untrue, that
out-of-court quarrel is of no consequence to the determination of UMG’s lawsuit.10
Even if UMG had alleged—perhaps in response to Escape’s now-defunct DMCA
defense—that Escape employees personally uploaded copyrighted music to
Grooveshark’s database and refused to take it down when asked, Escape still fails to
explain how discovery of Visitor’s identity would tend in reason to lead to evidence
disproving UMG’s allegation. Visitor said two things of consequence: (1) He/she is an
Escape employee; and (2) Escape administrators encouraged employees to infringe on
copyrights. Escape apparently believes disproving one or both of these out-of-court
claims would somehow disprove UMG’s allegations. We fail to see how. Even if
Escape were able to show Visitor lacked evidence to support his or her claims—for
example by showing Visitor was not in fact an Escape employee or was motivated by
mischief or spite—such a showing would have no tendency in reason to prove UMG
lacked evidence supporting its allegations. If Escape proposes to demonstrate
affirmatively that its practices are not as Visitor described, Visitor’s identity would be
unnecessary to such a proof. In either case, Visitor’s identity has no tendency in reason
to prove or disprove any disputed fact of consequence to the action, and is not reasonably
calculated to lead to such proof.
Escape argues Visitor’s identity “would obviously be germane” to its
counterclaims for interference with business relations if, as Escape has long suspected,
Visitor’s comments were planted by UMG. The argument is without merit.
In its counterclaims, Escape alleges that in 2010, UMG contacted Hewlett
Packard, INgrooves (a digital music distribution company), Apple iStore, Google, and
MusicAds (a Madrid, Spain company that sells ad space on Web sites) and dissuaded
them from doing business with Escape. Nothing in the record suggests Escape’s
10
Nothing in the record suggests UMG will rely on Visitor’s assertion that Escape
employees uploaded music to Grooveshark’s database, to support either of its causes of
action. In fact, in response to Escape’s discovery request, UMG indicated it possessed no
information related to Visitor’s identity.
12
counterclaims pertain in any way to Visitor’s 2011 comments on the Digital Music News
Web site or that those comments caused third party companies to end business
relationships or terminate contracts with Escape. Moreover, Escape offers no explanation
supporting its belief that Visitor might be associated with UMG. Escape’s argument that
Visitor is a UMG plant rests on pure speculation, not reasonable calculation.
Finally, Escape argues Visitor’s identity is relevant to a federal lawsuit in which
UMG specifically references Visitor’s comments to bolster its allegation that Escape
engaged in copyright infringement. In 2011, UMG and several other record labels filed a
lawsuit in the Southern District of New York against Escape for violation of federal
copyright laws.11 (Arista Music v. Escape Media Group (S.D.N.Y. 2011, No. 8407).)
For reasons discussed above, we suspect Visitor’s identity would be irrelevant even in
that lawsuit, as an anonymous comment on the Internet is nugatory both as a matter of
pleading and of proof, and would not rise to the status of a disputed fact until such time
as the plaintiff attempts to call Visitor into court. At any rate, allegations in another
lawsuit are of no consequence to the determination of this action.
In sum, Visitor’s identity is not reasonably calculated to lead to the discovery of
admissible evidence in the underlying lawsuit between UMG and Escape.
3. Visitor’s privacy interests outweigh Escape’s need for disclosure
Even if Visitor’s identifying information was reasonably calculated to lead to
admissible evidence, his or her right to privacy under the California Constitution would
outweigh Escape’s need for the information.12 “The right to speak anonymously draws
its strength from two separate constitutional wellsprings: the First Amendment’s freedom
11
We deny Digital’s request for judicial notice of memoranda of law relating to
Escape’s motion to dismiss in this federal case. As the subpoena in the case before us
arises out of UMG’s lawsuit against Escape in New York state court, these memoranda
are irrelevant.
12
Digital possesses standing to assert Visitor’s constitutional rights. (See Rancho
Publications v. Superior Court (1999) 68 Cal.App.4th 1538, 1541 [a non-party “to civil
litigation (such as a newspaper) [may] assert the constitutionally protected rights of an
author to remain unknown”].)
13
of speech and the right of privacy in article I, section 1 of the California Constitution.”
(Rancho Publications v. Superior Court, supra, 68 Cal.App.4th at pp. 1540-1541.) The
California Constitution provides that all people have a right of privacy. (Cal. Const., art.
I, § 1.) This express right is broader than the implied federal right to privacy. (American
Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 326.) The California privacy
right “protects the speech and privacy rights of individuals who wish to promulgate their
information and ideas in a public forum while keeping their identities secret,” and “limits
what courts can compel through civil discovery.” (Rancho Publications v. Superior
Court, supra, 68 Cal.App.4th at pp. 1547-1548.)
Both California courts and federal courts have recognized the value in extending
the protections afforded anonymous speech to speech made via the Internet. (See
generally Reno v. ACLU (1997) 521 U.S. 844, 870; Krinsky v. Doe 6, supra, 159
Cal.App.4th 1154.) “The use of a pseudonymous screen name offers a safe outlet for the
user to experiment with novel ideas, express unorthodox political views, or criticize
corporate or individual behavior without fear of intimidation or reprisal. In addition, by
concealing speakers’ identities, the online forum allows individuals of any economic,
political, or social status to be heard without suppression or other intervention by the
media or more powerful figures in the field.” (Krinsky v. Doe 6, supra, 159 Cal.App.4th
at p. 1162.) “The ‘ability to speak one’s mind’ on the Internet ‘without the burden of the
other party knowing all the facts about one’s identity can foster open communication and
robust debate.’” (Doe v. 2TheMart.com Inc. (2001) 140 F.Supp.2d 1088, 1092.)
“[W]hen the constitutional right of privacy is involved, the party seeking
discovery of private matter must do more than satisfy the section 2017[.010] standard.
The party seeking discovery must demonstrate a compelling need for discovery, and that
compelling need must be so strong as to outweigh the privacy right when these two
competing interests are carefully balanced.” (Lantz v. Superior Court (1994) 28
Cal.App.4th 1839, 1853-1854; see also Planned Parenthood Golden Gate v. Superior
Court (2000) 83 Cal.App.4th 347, 367 [courts must balance the privacy interests of the
person subject to discovery against the litigant’s need for discovery].) A discovery
14
proponent may demonstrate compelling need by establishing the discovery sought is
directly relevant and essential to the fair resolution of the underlying lawsuit. (Planned
Parenthood Golden Gate v. Superior Court, supra, 83 Cal.App.4th at p. 367; Johnson v.
Superior Court (2000) 80 Cal.App.4th 1050, 1071.)
Applying this balancing test we conclude Visitor’s privacy interest outweighs
Escape’s need to discover his or her identity. That interest begins with Visitor’s need for
a venue from which to be heard without fear of interference or suppression. Visitor’s
anonymity also frees him or her from fear of retaliation, an even more compelling interest
if Visitor truly is an Escape employee, as represented, because exposure could endanger
not only his or her privacy but also livelihood.
On the other hand, Escape’s need for the discovery is practically nonexistent. If
Visitor is not an Escape employee, his or her opinion about Grooveshark not only lacks
foundation but would be undermined by Visitor’s misrepresentation concerning
employment, and would therefore be of little or no probative value in this or any
litigation. And as discussed above, Visitor’s comments, even if made by an employee,
are only tangentially related to UMG’s lawsuit, as Visitor makes allegations UMG does
not make and undermines a defense Escape is now barred from raising.
In no sense is Visitor’s identity essential to a fair resolution of the UMG lawsuit.
This is not a case where the veil of anonymity must be drawn aside to afford a victim
redress for the anonymous speaker’s defamation (Krinsky v. Doe 6, supra, 159
Cal.App.4th at pp. 1666-1667, 1173), obscenity (Roth v. United States (1957) 354 U.S.
476, 483), libel (Beauharnais v. Illinois (1952) 343 U.S. 250, 266), copyright
infringement (Harper & Row, Publishers, Inc. v. Nation Enterprises (1985) 471 U.S.
539, 555-556), misleading or commercial speech (Central Hudson Gas & Electric Corp.
v. Public Service Comm’n (1980) 447 U.S. 557, 563-564), or use of ‘fighting words’
(Chaplinsky v. New Hampshire (1942) 315 U.S. 568, 573). Visitor has done nothing
more than provide commentary about an ongoing public dispute in a forum that could
hardly be more obscure—the busy online comments section of a digital trade newspaper.
Such commentary has become ubiquitous on the Internet and is widely perceived to carry
15
no indicium of reliability and little weight. We will not lightly lend the subpoena power
of the courts to prove, in essence, that Someone Is Wrong On The Internet.
Given our holdings above, we decline to address Digital’s argument that routinely
deleted data controlled by a non-party cannot be subject to forensic examination under
the principles of electronic discovery.
Disposition
The petition for writ of mandate is granted. The trial court is directed to vacate its
order granting Escape’s petition to enforce the subpoena and to enter a new order denying
the petition. The writ of supersedeas is dissolved. Digital is to recover its costs on
appeal.
CERTIFIED FOR PUBLICATION
CHANEY, J.
We concur:
ROTHSCHILD, Acting P. J.
JOHNSON, J.
16