Published by LawTechie - February 7, 2011 - LawTechie

Two recent California rulings underline the State’s policy toward pre-trial subpoenas to identify anonymous publishers of defamatory content. In Liberty Media Holdings, LLC. v. Does 1-59, 2011 WL 292128 (S.D. Cal., January 25, 2011), the court applied the Seecandy standard to Plaintiff’s pre-trial motion to identify anonymous defendants by analyzing:

1) Whether plaintiff sufficiently identified the ananymous party so that a court can determine that it is a real person to be sued in court;
2) Plaintiff must state all previous steps taken to identify the party; and
3) Plaintiff must establish that a valid right of action exhists against defendant [e.g., by properly alleging defamation]

In Zoosk Inc. v. Does, 2010 WL 5115670 (N.D. Cal. December 9, 2011), the court applied a similar standard to find that Plaintiff showed sufficient cause to order Time Warner Cable to release its subscriber’s identifying information.

Under the the Cable Communications Policy Act, service providers are forbidden from releasing subscriber information without a court order. Thus, simple subpoenas are not enough to force the release of the information needed to make a claim against anonymous defendants. The Federal Rules of Civil Procedures 26(f) allow plaintiffs to make a pre-trial motion for an order to force the release of such information.

Moreover, many state procedural equivalents, such as New York’s CPLR 3102(c) and 403(d) allow plaintiff to institute a special proceeding against cable companies to seek such orders of disclosure. Different states utilize differing standards in deciding whether a plaintiff has stated sufficient cause to warrant such an order (New York applies a standard that is very similar to the federal Dendrite test which is more or less identical to California’s Seecandy standard).

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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