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Tuesday, March 17, 2009

Erie meets the First Amendment

The Maryland Court of Appeals last month established a standard for when a defamation plaintiff suing an anonymous on-line poster can enforce a subpoena against the non-party ISP to obtain the identities of the anonymous speakers. Commentary on the case here.

The court thoroughly discussed the standards that various state and federal courts have adopted for when such a subpoena should be enforced, ultimately adopting a three-part test: 1) the plaintiff must attempt to give notice to the Doe defendants that a court order has been sought to obtain the Doe identities and await a possible response; 2) the plaintiff must identify the precise statements alleged to be defamatory; 3) the plaintiff must make a prima facie showing of defamation; and 4) the court must balance the anonymous poster's First Amendment interests in anonymous speech with the strength of that prima facie case. The court was trying to balance First Amendment concerns inherent in such discovery efforts, a problem that arises primarily in defamation cases (which tend to arise in state court), but also could come up in copyright cases (which are brought exclusively in federal court).

So here is a nice Erie question: In a diversity action, must a federal court apply the state-law standard for when a plaintiff can subpoena the identity of an anonymous poster or can it utilize a different federal standard? Are these standards part of substantive state defamation law, where a federal court must follow state law? Or do they reflect an interpretation of the federal Constitution, which state and federal courts are equally competent to interpret? Or is it an interpretation of the procedural rules governing subpoenas, in which case federal courts interpret and apply one set of rules and state courts interpret and apply a different set?


Posted by Howard Wasserman on March 17, 2009 at 03:43 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink


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This is a very good question, I would think that the state law would control, but this is a tough question.

I also think the constitutional issues should also influence the standard for discovery. See my paper from the Journal of Technology Law & Policy, Who's Exposing John Doe? Distinguishing Between
Public and Private Figure Plaintiffs in Subpoenas
to ISPs in Anonymous Online Defamation Suits, available on SSRN here.

Posted by: Jason | Mar 19, 2009 2:57:46 PM

Great question. It seems the added hoops a plaintiff has to go through on a motion for expedited discovery, or perhaps on a motion to quash, are procedural protections for a substantive right, the right being the First Amendment right to speak anonymously. So in that case I don't think state substantive law comes in at all, and Erie does not arise. I don't the protections have anything to do with defamation law per se, outside of the context of the First Amendment; I haven't read the Maryland opinion yet but other opinions in this area recognize that the interest being protected is not particular to defamation defendants.

If a state substantive law protection is at issue, then I think it controls under Erie, because (as I remind my students) there's no clear federal rule for how to resolve these disputes, and it does seem ex ante outcome determinative, at least if the federal standard is more permissive.

Posted by: Bruce Boyden | Mar 18, 2009 5:07:25 PM

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