Published by LawTechie - June 6, 2011 - LawTechie

Earlier this week Public Citizen moved a Colorado District Court for an emergency stay to a fellow Magistrate’s ruling. The Magistrate had, according to Public Citizen’s motion, perfunctorily granted Faconnable USA Corporation’s subpoena to reveal the identities of several anonymous defendants who Faconnable had claimed had defamed the company.

Granting the motion to stay, the Colorado District Court found that the Magistrate had improperly failed to analyze the merit’s of Faconnable’s defamation claim before granting the subpoena:

This case involves delicate balancing of the Does’ First Amendment rights with the Plaintiff’s rights to litigate its claims, and is deserving of “deliberate investigation.”

As in many such cases across the country, with its “deliberate investigation” language, the Colorado Court seems to be saying that its judges ought to adopt something along the lines of the Dendrite Factors which other State and Federal Courts to use determine whether anonymous defendants’ identities should be revealed.

The standard which has been applied by California and New York courts of late, based on the Dendrite Factors, requires analysis of the following before anonymous identities can be ordered revealed: (1) the plaintiff’s ability to establish a prima facie claim; (2) the specificity of the plaintiff’s discovery request; (3) the availability of alternative means to obtain the subpoenaed information; (4) the central need for discovery to advance the plaintiff’s claim; and (5) the defendants’ expectation of privacy.

LawTechie is a blog focusing on trends in tech and digital media. Areas covered include intellectual property, cyberlaw, venture capital, transactions and litigation as they relate to the emerging sectors. The blog is edited by the firm's partner Tim Bukher with contributions from the firm's experts in their respective areas of law.

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