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Music Group MacAo Commercial Offshore Ltd. v. Does

United States District Court, N.D. California, San Francisco Division

January 6, 2015

JOHN DOES I-IX, Defendants.


LAUREL BEELER, Magistrate Judge.


The plaintiffs seek to enforce a subpoena against nonparty Twitter, Inc. That subpoena would compel Twitter to reveal identifying information for the anonymous Twitter users who are the Doe defendants. The district court for the Western District of Washington has already ruled that the plaintiffs may obtain that information. (ECF No.2 at 30-33.)[1] The only issue before this court is whether the subpoena unduly infracts the Doe defendants' First Amendment right to speak anonymously. For the reasons stated below, and on this record, the court holds that the plaintiffs' need for the requested information outweighs any harm that will be done to the defendants' First Amendment rights. See, e.g., Perry v. Schwarzenegger, 591 F.3d 1126 (9th Cir. 2009). The court thus grants the plaintiffs' motion and enforces the subpoena. The court denies as moot the plaintiffs' motion (ECF No. 3) to transfer this subpoena-related motion to the United States District Court for the Western District of Washington. The court also sets out procedures to safeguard the Doe defendants' First Amendment rights.

The court finds this matter suitable for determination without oral argument and vacates the hearing that is set for January 8, 2015. See Civ. L.R. 7-1(b).


The underlying case is primarily one for defamation with attendant claims for copyright infringement, unfair competition, and breach of contract. ( See Complaint - ECF No. 2 at 5-19.) The plaintiffs, whom the court will collectively call "Music Group, " filed this case against John Doe defendants in the United States District Court for the Western District of Washington. ( Id. ) Music Group alleges in sum that the defendants have used anonymous accounts on the Internet service Twitter - under the account names @FakeUli and @NotUliBehringer - to "publish disparaging remarks about" Music Group, its employees, and its CEO, Uli Behringer. (ECF No. 1 at 3.) According to Music Group, the Doe defendants have used these accounts to make "malicious, defamatory statements, which the [defendants] knew to be untrue"; this includes claiming that Music Group "designs its products to break in 3-6 months, " that Music Group "encourages domestic violence and misogyny, " and that the company's CEO, Mr. Behringer, "engages with prostitutes." ( See ECF No. 1 at 7.)

Because the relevant Twitter accounts are anonymous, Music Group has not been able to serve process on the defendants. Music Group has thus subpoenaed Twitter (who is not a party to this suit) to reveal the identities of the @FakeUli and @NotUliBehringer users so that it can serve the complaint on them. More precisely, Music Group's subpoena would have Twitter produce "the name, address, email address and any proxy address" of the accounts' owners. (ECF No. 1 at 3; ECF No. 2 at 35, 41-45 (subpoenas).)

The Washington district court has already granted Music Group expedited discovery to determine the identities of the Doe defendants. (ECF No. 2 at 30-33.) The Washington court held that Music Group had shown "good cause" for the requested discovery. ( Id. ) Given that order, Music Group subpoenaed Twitter for the identifying information. (ECF No. 2 at 35, 41-45.) So far, Twitter has not produced information in response. "Moreover, " according to Music Group, "although the Court in [Washington] has issued the order for early discovery, Twitter [which is headquartered in San Francisco] would not agree to have the Court in [Washington] decide" a motion to compel compliance with the subpoena. (ECF No. 2 at 2, ΒΆ 5.)

Music Group then filed this miscellaneous proceeding, asking this court to enforce the subpoena. (ECF No. 1.) Twitter "takes no position on the merits" of Music Group's motion. (ECF No. 12 at 2 and n. 1.) Twitter states only that this court must make the necessary legal analysis "to ensure that the appropriate First Amendment standard is met and that the [Doe defendants'] right to anonymous free speech is protected." ( Id. ) Twitter also says that, if the court rules in Music Group's favor, it will respond to the subpoena. ( Id. )


"It is well established that the First Amendment protects the right to anonymous speech." Art of Living Found. v. Does 1-10, No. 10-5022, 2011 WL 5444622, *3 (N.D. Cal. Nov. 9, 2011) (citing McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 342 (1995)). "However, the right to anonymity is not absolute." Art of Living, 2011 WL 5444622 at *4. "Where anonymous speech is alleged to be unlawful, the speaker's right to remain anonymous may give way to a plaintiff's need to discover the speaker's identity in order to pursue its claim." Id.

In Perry v. Schwarzenegger, 591 F.3d 1126, 1140-41 (9th Cir. 2009), the Ninth Circuit described the following two-part framework for analyzing claims of "First Amendment privilege" in the context of discovery requests:

The party asserting the privilege must demonstrate a prima facie showing of arguable first amendment infringement. This prima facie showing requires [the requesting party] to demonstrate that enforcement of the discovery requests will result in (1) harassment, membership withdrawal, or discouragement of new members, or (2) other consequences which objectively suggest an impact on, or "chilling" of, the members' [First Amendment] rights. If [the party opposing discovery] can make the necessary prima facie showing, the evidentiary burden will then shift to the [party seeking discovery] to demonstrate that the information sought... is rationally related to a compelling governmental interest and the least restrictive means of obtaining the desired information. More specifically, the second step of the analysis is meant to make discovery that impacts First Amendment... rights available only after careful consideration of the need for such discovery, but not necessarily to preclude it.

Id. at 1140 (quotations, citations, and alterations omitted); see Drummond Co. v. Collingsworth, 2013 WL 6074157, *12 (N.D. Cal. Nov. 18, 2013) (applying Perry to subpoena seeking identity of anonymous Internet-service users); Chevron Corp. ...

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