District Court Holds First Amendment Protects Website User Information, Quashes Subpoena

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In re Lazaridis, No. 10–CV–00029, 2011 BL 224965 (D.N.J. Sept. 1, 2011) The U.S. District Court for the District of New Jersey granted a motion to quash a subpoena duces tecum for postings to an online forum, finding that the posters' First Amendment rights outweighed the petitioner's need for the information, and that producing it would be unduly burdensome.

Subpoena Sought for User Information

Emmanuel Lazaridis alleged that he was the complainant and civil participant in a Greek criminal prosecution for defamation against several U.S. citizens. Lazaridis petitioned the court under 28 U.S.C. § 1782 for discovery from the Bring Sean Home Foundation ("BSHF"), a non-profit corporation based in New Jersey that assists victims of international child abduction. According to the court, BSHF, which was run on a part-time volunteer basis, maintained a website with over 40 forums containing thousands of individual posts. Lazaridis filed an ex parte petition with the district court for discovery on BSHF. The court issued an order allowing Lazaridis to serve a subpoena duces tecum on BSHF for all documents concerning (1) Lazaridis (2) members of BSHF's website with certain specified user names, (3) the National Centre for Missing in Europe Children, and (4) certain BSHF messages, including authorization, error, and download logs. After it was served, BSHF filed a motion to quash the subpoena.

Website Claims Subpoena is Unreasonable

Lazaridis alleged that he needed access to the information to show harm to his reputation in order for the Greek court to determine the amount of damages. BSHF contended that the subpoena was unduly burdensome under Fed. R. Civ. Pro. 45(c)(3)(A)(iv). An undue burden exists when a subpoena is "unreasonable or oppressive." Lazaridis at 4 (quoting Schmulovich v. 1161 Rt. 9 LLC, 2007 BL 80012, at 4 (D.N.J. 2007)). Factors used to determine unreasonableness or oppression, which the moving party has the burden of demonstrating, include "(1) the party's need for the production; (2) the nature and importance of the litigation; (3) the relevance of the material; (4) the breadth of the request for production; (5) the time period covered by the request; (6) the particularity with which the documents are described; and (7) the burden imposed on the subpoenaed party." Id. BSHF argued that, among other things, Lazaridis had no legitimate need for the documents, because much of the information was publicly available by searching the posts on its website. Anyone with Internet access could search all 41 forums on the website, while producing the information would be burdensome, because the backup information was not stored in Structured Query Language ("SQL") and not available in a readable format. BSHF also asserted that the request was "extremely broad, unconstrained in time and undiscriminating in its description," as Lazaridis did not seek individual messages, but rather "an entire universe of documents relating to certain members" and "the underlying electronic data relating to those posts." Id. at 6. In addition, according to BSHF, disclosing the names and IP addresses of anonymous posters would violate its privacy policy, which stated that private e-mail addresses, names, ISP addresses, and telephone numbers would not be given to third parties. BSHF argued that in order to overcome the First Amendment protection that applies to the postings, Lazaridis must be required to show a compelling need for the information. BSHF also pointed out that it was not a party to the Greek litigation and argued the suit was only intended to harass BSHF.

First Amendment Shields Posters

The court first found that Lazaridis offered no evidence to show the relevance of the documents to the Greek prosecution. The court next found that the request was overly broad and intrusive, noting that the postings were both publicly accessible and not available in bulk in readable format. Finally, the court found that BSHF "raised serious concerns with regard to the First Amendment implications that would arise were [BSHF] to provide private e-mail addresses, names, and ISP addresses to a third party." Id. at 11. The court observed that BSHF's privacy policy informed members that their private information would be protected, and noted that "[c]ourts have held that anonymous speakers posting on the internet are afforded First Amendment protections, and a party seeking disclosure of the speaker's identity must show a compelling need for the discovery, such that the need outweighs any First Amendment right." Id. (citing McVicker v. King, 266 F.R.D. 92, 96–98 (W.D. Pa. 2010)). The court held that Lazaridis did not show a compelling need, especially given the fact that neither BSHF nor its posters were the alleged defaming party in the Greek litigation.
The cost and burden to BSHF, when weighed against the lack of a showing of actual need or relevance of the information sought, coupled with the First Amendment rights that are necessarily implicated, leads this Court to conclude that enforcement of the Subpoena would create an undue burden on BSHF.
Id. Accordingly the court granted the motion to quash the subpoena. Disclaimer This document and any discussions set forth herein are for informational purposes only, and should not be construed as legal advice, which has to be addressed to particular facts and circumstances involved in any given situation. Review or use of the document and any discussions does not create an attorney-client relationship with the author or publisher. To the extent that this document may contain suggested provisions, they will require modification to suit a particular transaction, jurisdiction or situation. Please consult with an attorney with the appropriate level of experience if you have any questions. Any tax information contained in the document or discussions is not intended to be used, and cannot be used, for purposes of avoiding penalties imposed under the United States Internal Revenue Code. Any opinions expressed are those of the author. The Bureau of National Affairs, Inc. and its affiliated entities do not take responsibility for the content in this document or discussions and do not make any representation or warranty as to their completeness or accuracy. ©2014 The Bureau of National Affairs, Inc. All rights reserved. Bloomberg Law Reports ® is a registered trademark and service mark of The Bureau of National Affairs, Inc.

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