Chang v. Greenwald [1]

On September 9, 2009, Superior Court Judge Shelleyanne Chang ruled [2] (scroll to Item 7) on blogger David Greenwald's motion to quash [3] a subpoena [4] seeking the identity of commenters to his blog, the People's Vanguard of Davis [5]. Judge Chang decided that former UC Davis police officer Calvin Chang (no relation to the judge) cannot obtain directly any identifying information for the commenters in question, but he can employ a third-party expert to determine whether the comments were posted by specific UC Davis personnel whose names Chang will provide in advance.

This summer, Mr. Chang's attorney served the subpoena on Google, Greenwald's former blog host, as part of Chang's employment discrimination and breach of contract action against the UC Davis.  Greenwald published blog entries about Chang's lawsuit back in February 2009, a few days after the suit was filed, and several readers posted negative comments about Chang and his case. The subpoena seeks identifying information for seven anonymous and pseudonymous comments.  Chang maintains that the individuals who left these comments are "managing agents" of the university, and that the comments themselves constitute evidence of breach of a previous settlement agreement by the university. Google informed Greenwald of the subpoena, and he challenged it, arguing that the First Amendment protects the rights of his commenters to speak anonymously and that the information is not relevant to Chang's suit against the university.

The court largely agreed with Greenwald's arguments, finding that Chang "has not made the requisite prima facie [6] showing of a valid libel claim against [the commenters] in order to justify the requested disclosure of their personal information," apparently in a subtle nod to Krinsky v. Doe 6 [7], 72 Cal. Rptr. 3d 231 (Cal. Ct. App. 2008), a California appellate decision [8] Greenwald relied on heavily. The court went on to explain that Chang's opposition papers "nowhere showed or attempted to show that the comments posted to the blog were 'assertions of fact which are provably false' and not non-actionable opinions, as required by Paterno v. Superior Court (Ampersand Publishing) (2008) 163 Cal. App.4th 1342, 1349-1350."  The court therefore concluded that Chang failed to justify the disclosure of the posters' identity in order to proceed with libel claims against them.

But, the court recognized that "if the comments posted on the blog were authored by 'managing agents' of the university, they would constitute evidence relevant to existing claims against the university." The court found that Chang "identified specific reasons" to believe that the postings were made by university personnel because of "the use of unique terms" and "reference to information not generally known." Still, the court worried about stripping unrelated Internet speakers of their anonymity without justification and therefore imposed the following conditions on Chang's discovery of the identity of the posters to the blog:

• At his own expense, Chang will retain an independent third party to perform an IP address trace of the sources of the comments posted to the blog;
• Chang will provide the third party with the names of the specific university personnel believed to have posted the comments;
• The third party will be the "exclusive recipient" of records and information produced by Google or Greenwald in response to the subpoena or similar subpoenas seeking the identify of the commenters;
• If the third party determines that any of the comments were posted by the specific university personnel identified in advance by Chang, then he/she will release the associated records and information to the parties; and
• If the third party determines that any of the postings were not authored by someone on Chang's list, then he/she will be prohibited from releasing any records or information relating to the posting(s) or individual(s).