In Rich v. Butowsky, issued earlier this week, Magistrate Judge Ryu of the Northern District of California denied Twitter’s motion to quash a third party subpoena seeking data from an anonymous account user where the requested data was narrowly tailored and relevant to the litigation. Rule 45 governs the scope of permissible third party subpoenas, and the standards of proportionality and relevance still apply. But when the user is anonymous, as here, First Amendment considerations have to be taken into account, and the Ninth Circuit has recognized “that the decision to remain anonymous extends to anonymous speech made on the internet.
This third party subpoena matter arose out of a defamation case in D.C. related to the unsolved murder of Seth Rich, a DNC staffer who was shot in the back in Washington D.C. in July 2016. His brother, Aaron Rich, brought this defamation case against Edward Butowsky, Matthew Couch, America First Media, and the Washington Times for making statements alleging that he and his brother conspired to leak hacked emails from the DNC to Wikileaks. (The article was later retracted, the link is from the Wayback Machine.) The source for the article was an “federal investigator” who provided a report to the journalists stating that a review of Seth Rich’s computer following his murder showed emails to Wikileaks. But the “federal investigator” hid behind an anonymous identity, and discovery of text messages showed the reporters knew the report was fake. Through discovery, plaintiff was able to identify emails from the email address email@example.com and show that the Twitter handle @whysprtech claimed to have leaked FBI materials to a reporter the same day a reporter posted a related news story. The Twitter account for @whysprtech had since been deleted. Plantiff issued a subpoena to Twitter requesting:
All user and account information concerning the Twitter account @whysprtech that was in use on May 29, 2017 or had the UID 868729045881696256, excluding the contents of any and all communications sent to or from the @whysprtech account.
Twitter moved to quash pursuant to Fed. R. Civ. P. 45(d)(3)(A)(iii), asking the Court to determine whether the anonymous nature of the account made the information a “privileged or protected matter” under that section. Judy Ryu adopted the four part test first laid out in Doe v. 2TheMart.com Inc., and more recently cited in Sines v. Kessler which requires:
(1) the subpoena seeking the information was issued in good faith and not for any improper purpose, (2) the information sought relates to a core claim or defense, (3) the identifying information is directly and materially relevant to that claim or defense, and (4) information sufficient to establish or to disprove that claim or defense is unavailable from any source.
Twitter argued plaintiff could use the subpoena to “to chill protected speech, which would be for an improper purpose”; Rich countered that the subpoena is based on information learned through discovery, is relevant to the litigation, and can be protected pursuant to the parties’ protective order allowing for the information to be designated attorneys eyes’ only. Twitter countered that the protective order cannot be substituted for a First Amendment analysis because the release of any knowledge of user information for the Account is enough to endanger the constitutional protection.
The court found that the good faith factor weighed in favor of disclosure where: 1) the subpoena quashed in Doe v. 2TheMart was broad, here “the subpoena was narrowly tailored to exclude any personal communications made by the user”, 2) the plaintiff demonstrated “that Defendants will likely rely on the affirmative defense of truth with regard to the FBI Report, which weighs in favor of a finding of good faith” and 3) that the protective order “provides adequate safeguards against Rich’s ability to publicize the user information for inappropriate reasons”.
Core Claim or Defense
A review of the D.C. complaint was sufficient for the Court to determine that the requested discovery related to his defamation claim, and that the defamation claim was a core claim in that complaint.
This factor considers whether “the identifying information is directly and materially relevant to [the core] claim or defense.” Not surprisingly, given the discovery already uncovered, the court noted that plaintiff presented evidence to suggest that the FBI Report was leaked by the Account user, and that the identity of the user was “directly and materially relevant to Rich’s defamation claim since it will inform whether Defendants made their statements with the requisite state of mind.” The Court went further in establishing material relevance:
The information sought is also materially relevant to the defense of truth because the original source may be able to provide what facts, if any, formed the basis for the various assertions about Rich. Additionally, the user information for the Account could lead to an essential witness for Rich and/or Defendants. See Sines, 2018 WL 3730434, at *14 (“[U]ncovering potential witnesses and participants is an integral part of Plaintiffs’ case….”). In considering the extent to which the Account user’s interest in anonymity weighs against the relevance of his account information, the Protective Order mitigates the risk of harm to the Account and further tips this factor in favor of disclosure. The information sought is proportional to the needs of the case because the Subpoena is limited in scope and Twitter does not argue that responding would pose an undue burden.
Just like it sounds, the final factor is whether the information is available from other sources. Unlike in 2TheMart, plaintiff provided unrefuted evidence that Twitter is the only source of information about the user account. Plaintiff was unable to find out more information through discovery with defendants and previous third party subpoenas to those in contact with the account were fruitless.
Finding that all four factors weighed in favor of disclosure, the Court denied the motion to quash.
Practical Applications of the Ruling
While the legal takeaway here is the four factor test, there’s a practical takeaway that is not to be missed. Rich’s counsel found the puzzle pieces they needed to show what pieces they were MISSING. They found, through discovery, evidence of the email address. They traced the text messages and made a timeline to show the relationship of the Twitter feed to the date of the article and related messages. They did discovery of discovery, and that specific level of detail is what allowed them to prevail against Twitter here. The good faith and material relevance factors here are what this decision turned on, and the specific level of detail provided by Rich to the Court is what won the day.
Take that practical lesson away from this case. Make sure your motions are sufficiently factual to allow for your arguments to prevail. Too many motions are thrown at the wall to see what sticks. Better planning, specific facts to back up your statements will carry the day with ESI arguments. Use timelines, show a Court what’s happening, don’t make them guess. Give yourself enough time in discovery to evaluate the data you get and have the ability to follow up. Focused discovery started immediately will give you that leeway. Waiting for months and then taking what you get will not end the same way this decision did.