Anonymity

Melvin v. Doe

Threat Type: 

Lawsuit

Date: 

06/14/1999

Party Issuing Legal Threat: 

Joan Melvin

Party Receiving Legal Threat: 

John Doe(s)

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Twentieth Judicial Circuit of Virginia, Loudon County; Court of Common Pleas, Alleghany County, Pennsylvania

Case Number: 

No. 21942 (Virginia); GD 99-10264 (Pennsylvania)

Legal Counsel: 

Ann Beeson, Ronald Barber, Witold Walczak

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

Joan Melvin, a Pennsylvania Superior Court judge, sued the anonymous operator or operators of the website, "Grant Street '99," because of statements that appeared on the website accusing her of political activity and lobbying in connection with the gubernatorial appointment of another judge.

Melvin initially sued the anonymous defendant(s) for defamation in Virginia state court and sought an ex parte order requiring America Online (the website's hosting service) to disclose the identity of the webmaster. The Virginia court dismissed the action for lack of personal jurisdiction, and Melvin re-filed the lawsuit in Pennsylvania state court and subpoenaed AOL for discovery of the identity of the webmaster. Through counsel, the anonymous defendant(s) moved for a protective order against discovery of their identities on grounds that the First Amendment protected the right to engage in anonymous political speech.

The trial court initially stayed discovery of the identity of the defendant(s) and allowed ordinary fact discovery to proceed in order to give the defendant(s) the opportunity to show that Melvin could not prevail in the lawsuit. The defendant(s) moved for summary judgment, arguing, among other things, that Melvin could produce no evidence of economic harm. The trial court denied the motion for summary judgment, finding that Melvin had brought forth evidence of falsity, defamatory meaning, and actual harm. At this point, the court denied the defendant(s)' motion for a protective order barring discovery of their identities pending a trial on all issues but malice.

The anonymous defendant(s) appealed. The Superior Court quashed the appeal, holding that the denial of a motion for a protective order was not an appealable collateral order. The anonymous defendant(s) appealed to the Pennsylvania Supreme Court, which reversed the decision of the Superior Court, holding that the discovery ruling was appealable. The court remanded the case to the Superior Court "for consideration of Appellants' constitutional question, namely, whether the First Amendment requires a public official defamation plaintiff to establish a prima facie case of actual economic harm prior to obtaining discovery of an anonymous defamation defendant's identity." Melvin v. Doe, 836 A.2d 42, 50 (Pa. 2003).

Melvin voluntarily dropped the lawsuit in 2004.

Later, former Alleghany County employee John Chapman revealed that he was behind "Grant Street '99."

Content Type: 

CMLP Notes: 

SB editing

Jurisdiction: 

Subject Area: 

Greenbaum v. Google (Blogger)

Threat Type: 

Subpoena

Date: 

02/14/2007

Party Issuing Legal Threat: 

Pamela Greenbaum

Party Receiving Legal Threat: 

Google, Inc. (dba Blogger and Blogspot)

Type of Party: 

Individual

Type of Party: 

Large Organization
Intermediary

Court Type: 

State

Court Name: 

Supreme Court of the State of New York for the County of New York

Case Number: 

0102063/2007

Legal Counsel: 

Paul Levy (Proposed Intervenor, OrthoMom); Tonia Klausner (Google)

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)
Subpoena Quashed

Description: 

The blog "Orthomom" is operated anonymously. Comments critical of Pamela Greenbaum, a Lawrence, Long Island School Board member, appeared on the blog in January 2007. Greenbaum objected to both primary blog content and a user comment.

In February 2007, Greenbaum filed a motion for "pre-commencement discovery" in New York state court, seeking to compel Google to disclose identifying information about the operator of the blog and a user. On February 22, 2007, the parties entered into a stipulation, in which Google agreed to produce the requested information by April 5, 2007, "unless a third party appears and objects to such production and unless otherwise ordered by the Court." The stipulation also provided for Google to deliver a copy of the order to the anonymous operator of Orthomom.

In late February 2007, counsel for Orthomom contacted the court and objected to disclosure. Orthomom then moved to intervene in the dispute and filed a brief invoking First Amendment protections for anonymous speech. The court granted the motion to intervene.

On October 23, 2007, the court denied Greenbaum's request for pre-commencement discovery and dismissed the lawsuit. In its order, the court recognized that the First Amendment protects the right of an anonymous poster to engage in speech on the Internet, and that courts must balance this right with the plaintiff's right to pursue a valid cause of action for defamation. The court expressed a willingness to follow the standard set forth in Dendrite v. Doe, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001), in which a New Jersey appellate court held that a plaintiff must produce prima facie evidence on each element of its claim before a court will order discovery on the identity of an anonymous defendant. The Greenbaum court indicated that it was not necessary to decide the precise standard to be applied, however, because "the statements on which [Greenbaum] seeks to base her defamation claim are plainly inactionable as a matter of law." Greenbaum v. Google, No. 0102063/2007, slip op. at 3-4 (N.Y. Sup. Ct. Oct. 23, 2007).

Specifically, the court held that statements by Orthomom criticizing Greenbaum's views and indicating that Greenbaum had "no interest in helping the private school community" were not susceptible of a defamatory meaning and constituted protected opinion. The court held further that the statement of an anonymous commenter that Greenbaum was a "bigot and really should not be on the board" was protected opinion. In a footnote, the court noted that because this statement was not actionable, it did not need to reach the issue of whether CDA 230 (47 U.S.C. § 230(c)) protected Orthomom from liability.

Content Type: 

CMLP Notes: 

SB Reviewed; MS Update with documents, 10-04-2007; to-do:

Jurisdiction: 

Subject Area: 

Landmark Education LLC v. Ross

Date: 

06/25/2004

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

Landmark Education LLC

Party Receiving Legal Threat: 

Rick Ross Institute of New Jersey; Rick Ross

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the District of New Jersey

Case Number: 

2:04CV03022

Legal Counsel: 

Peter L. Skolnik - Lowenstein Sandler, PC

Publication Medium: 

Broadcast
Forum
Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

Landmark Education is a for-profit company engaged in the business of making "education programs" available to the general public and corporations, on subjects including communication, time management, and productivity. Its basic program is "The Forum" -- a three day/one evening seminar directed at "enhancing communication, creativity, and productivity for participants." Participants in the Forum may and are urged to take additional seminars given by Landmark and to recruit new participants for Landmark programs.

Rick Ross runs nonprofit websites, www.rickross.com , www.culteducation.com, and www.cultnews.com, through his non-profit entity, the Rick Ross Institute of New Jersey. The websites provide information to the public about cults and other controversial groups. On the website, Ross solicits contributions and sells his books and multimedia materials. Ross also operates a for-profit business "de-programming" the victims of cults, which is advertised on his sites.

Ross included Landmark on his list of organizations refered to as "controversial groups, some called 'cults," which included organizations such as the Aryan Brotherhood and Al-Qaeda.

Visitors to Ross's sites posted various anonymous "visitor comments" critical of Landmark that allegedly gave the impression that Landmark's programs are cult-like and present risks of physical or mental harm to participants. Other comments accused Landmark of "hypnotizing" and "braninwashing" participants, attempting "cult recruitment" and "mind control." Others indicated that the Landmark Forum "used bright fluorescent lighting with no windows, didn't allow food or drink in the room, and required such long hours," and that participants in the Landmark Forum who wanted to leave were met with "guilt, manipulation and implied threats" and those who did leave were "harassed" by Landmark representatives seeking to convince them to return. The sites contained a disclaimer displayed at the bottom of the visitor comments pages indicating that "the Rick Ross Institute, its Advsiory Board and/or Rick Ross do not necessarily endorse or support any of the views expressed within the documents, articles, reports, and testimonies archivied within this website, with the exception of those specifically so attributed."

Ross's sites also posted anonymously authored "personal stories" detailing unpleasant experiences that befell the authors or someone close to them during their participation in one of Landmark's programs. Some of these personal stories had provacative titles, including "This cannot be healthy emotionally" and "Landmark Education destroyed my life -- from the Forum to the psych ward." These personal stories included statements to the effect that Landmark's programs make a "deliberate assault on your mind," are a "form of mind control," and have "cult attributes."

The websites also hosted a number of articles by third-party authors concerning Landmark, with titles like "Brain Wash," "Mindbreakers," and "Microsoft Paid for Culty Clinics," which had been previously published in other publications.

Additionally, visitors to the websites' forum sections, writing under psuedonyms, posted a number of critical comments accusing Landmark of mind control, brainwashing, and the like. The websites posted rules relating to the forums, stating "the moderators of this forum will attempt to keep all objectionable messages off this forum, but it is impossible to review every message. All messages express the views of the author, and neither the owners of this forum, Cult Education.com, Rick Ross.com and/or developers of bulletin software, will be held responsible for the content of any message."

Ross's websites also included links to other websites containing negative content relating to Landmark. The links were accompanied by a disclaimer: "The Rick A. Ross Institute, its Advisory Board and/or Rick Ross do not necessarily endorse or support any of the views expressed within the linked websites listed at the Links page of this website."

At the time of the lawsuit, apparently a search for "Landmark Education" on Google produced Ross's websites on the results list.

Ross also allegedly made several statements to the news media radio shows, indicating that certain of Landmark's methods were "cult-like" and that participants of Landmark's programs had suffered negative mental health effects.

In June 2004, Landmark sued Ross and the Ross Institute in United States District Court for the District of New Jersey, asserting claims of product disparagement, tortious interference with ongoing and propspective business relations, trademark disparagement under the Lanham Act, consumer fraud and unfair competition under New Jersey law, and prima facie tort.

Ross and the Institute filed an answer in September 2004 without moving to dismiss. In it, they asserted various defenses, including that the statements were statements of opinion, the fair comment privilege, and lack of actual malice.

The details are not clear, but Landmark appears to have voluntarily dismissed the case in December 2005.

Content Type: 

CMLP Notes: 

to-do; further research required; get court documents, especially opinions on any rulings

Threat Source: 

MLRC

Jurisdiction: 

Subject Area: 

Donato v. Moldow

Threat Type: 

Lawsuit

Date: 

07/25/2001

Party Issuing Legal Threat: 

Vincent Donato; Gina Calogero; Eric Obernauer; Lawrence R. Campagna

Party Receiving Legal Threat: 

Stephen Moldow; John Does 1-40; Jane Does 1-20

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Superior Court of New Jersey, Bergen County Law Division

Case Number: 

002-L-006214-01

Legal Counsel: 

Skrod & Baumann

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)
Subpoena Quashed

Description: 

Stephen Moldow established the website "Eye on Emerson" in late 1999. He posted information about local government activities, including minutes of meetings of the borough council, planning board and board of education. Public opinion polls were conducted on the site, which included approval ratings of local elected officials. The site included a discussion forum, in which any user could post messages, either with attribution or anonymously.

Unknown users of the website posted comments on the forum under pseudonyms criticizing Vincent Donato and Gina A. Calogero, elected members of the Emerson Borough Council, and other local public officials. One comment indicated that Donato was "emotionally and mentally unstable and in need of psychiatric help, ready to explode and should be on medication." Another stated that Calogero used illegal drugs.

Donato, Calogero and other officials sued Moldow for defamation and other torts in New Jersey state court, claiming that he was responsible for the messages as a publisher. The plaintiffs subpoenaed the Internet service provider that hosted the website, seeking the identities of the unknown posters. The Public Citizen Litigation Group and the ACLU submitted an amicus curiae brief to address the First Amendment and Due Process rights of the anonymous posters who were not represented by counsel in the case. The court quashed the subpoena because the plaintiffs failed to meet the requirements of an important New Jersey opinion, Dendrite International, Inc. v. Doe, 342 N.J. Super. 134 (N.J. App. Div. 2001). The plaintiffs abandoned their claims against the anonymous posters.

The trial court later dismissed the complaint against Moldow on CDA 230 grounds, and the appeals court affirmed. See Donato v. Moldow, 865 A.2d 711, 713 (N.J. Super. Ct. 2005).

Content Type: 

CMLP Notes: 

SB Reviewed; to-do: get more court documents

Jurisdiction: 

Subject Area: 

McMann v. Doe 1

Threat Type: 

Lawsuit

Date: 

10/06/2006

Party Issuing Legal Threat: 

Paul McMann

Party Receiving Legal Threat: 

John Doe

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the District of Massachusetts

Case Number: 

1:06-CV-11825

Legal Counsel: 

None

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)
Subpoena Quashed

Description: 

Paul McMann, a Massachusetts real estate developer, sued the anonymous operator of an Internet "gripe site" about him. The website contained a photograph of Mr. McMann, the statement that he "turned lives upside down," and a suggestion to "be afraid, be very afraid." The website announced that it would soon be updated with specific evidence of McMann's alleged misdealings. McMann claimed that the unknown party operating the website violated his statutory and common law right of privacy, infringed his common-law copyright, and committed defamation. McMann sought to subpoena ISPs to discover the identity of the website operator.

The United States District Court for the District of Massachusetts held that it lacked subject matter jurisdiction because McMann asserted only state-law claims and did not identify the citizenship of the anonymous defendant. The court observed that diversity of citizenship between McMann and the ISPs that he sought to subpoena could not bestow subject-matter jurisdiction on the court. The court stated in the alternative that it would dismiss the underlying case for failure to state a claim. Relying on Doe v. Cahill, 884 A.2d 451 (Del.2005), an important case from the Delaware Supreme Court, the court opined that First Amendment protections for anonymous speech requires courts to impose a heightened preliminary burden on plaintiffs seeking to discover the identity of anonymous posters.

The court concluded that McMann could not meet this heightened burden because his complaint failed to even state a claim upon which relief could be granted. Specifically, the court held that the unknown website operator's publishing of a description of McMann's business activity and distributing a publicly available photograph did not impinge McMann's statutory right of privacy as a matter of law. It also found that McMann could not recover for misappropriation of his likeness because the website operator had not used his photograph for a commercial use, but rather for purposes of criticism. The court also held that Massachusetts does not recognize a common law cause of action for false light invasion of privacy, and that McMann's common law copyright claim was preempted by federal copyright law. Finally, the court indicated that McMann's defamation claim was fatally flawed because the statements at issue were non-actionable personal opinions that could not be proven true or false. McMann v. Doe, 460 F.Supp.2d 259 (D.Mass. 2006).

McMann later filed a nearly identical suit in Arizona.

Jurisdiction: 

Subject Area: 

Content Type: 

National Conference of Bar Examiners v. Earthlink

Date: 

04/12/2007

Threat Type: 

Subpoena

Party Issuing Legal Threat: 

National Conference of Bar Examiners

Party Receiving Legal Threat: 

Earthlink

Type of Party: 

Organization

Type of Party: 

Large Organization
Intermediary

Court Type: 

Federal

Court Name: 

United States District Court for the Northern District of Georgia

Case Number: 

1:07MI00097

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Description: 

The National Conference of Bar Examiners (NBCE) obtained an administrative subpoena issued pursuant to section 512(h) of the Digital Millennium Copyright Act, requesting that Earthlink disclose the identity of an Earthlink subscriber who posted comments anonymously to the Tab and Brandy blog. The anonymous comments disclosed 41 questions (and some answers) from the multi-state bar exam, after the exam had been administered.

The blog operator, a Texas lawyer, removed the string containing these comments shortly after they were posted, when the NBCE contacted the Texas Board of Law Examiners, which administered the bar in Texas. It is not clear whether Earthlink had sufficient records to disclose the identity of the poster.

The docket reveals no activity after April 12, 2007.

Content Type: 

Subject Area: 

CMLP Notes: 

SB Reviewed; to-do: get court documents, if any, from PACER

Jurisdiction: 

Fisher & Phillips v. Does

Threat Type: 

Lawsuit

Date: 

06/29/2005

Party Issuing Legal Threat: 

Fisher & Phillips, LLC

Party Receiving Legal Threat: 

John Doe(s) 1-5

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Northern District of Georgia

Case Number: 

1:05CV01719

Legal Counsel: 

None

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

In June 2005, Fisher & Phillips LLP, an Atlanta employment law firm, sued 5 anonymous bloggers for defamation, false light invasion of privacy, and interference with business and contractual relations. The complaint did not identify the allegedly defamatory statements with any specificity and did not name the websites on which they appeared.

After failing to identify or serve the defendants, Fisher & Phillips voluntarily dismissed the suit without prejudice in November 2005.

Content Type: 

Jurisdiction: 

Subject Area: 

Boulder County Sheriff v. MySpace

Date: 

11/11/2006

Threat Type: 

Subpoena

Party Issuing Legal Threat: 

Boulder County Sheriff

Party Receiving Legal Threat: 

MySpace

Type of Party: 

Government

Type of Party: 

Large Organization
Intermediary

Court Type: 

State

Publication Medium: 

Social Network

Status: 

Concluded

Disposition: 

Subpoena Enforced

Description: 

MySpace provided records subpoenaed by the Boulder County sheriff's department in a criminal libel investigation, commenced after a Colorado woman reported finding pictures of herself on MySpace under a fake profile named "Dirty Whore" that included information indicating that she was interested in meeting "men, women and/or couples who are looking to have a fun time."

Content Type: 

Subject Area: 

CMLP Notes: 

SB Reviewed; there is almost nothing available on this as far as I can tell. TO-DO: Get more precise date; further research required

Jurisdiction: 

Threat Source: 

MLRC

News America, Inc. v. Google Inc. (Subpoena)

Date: 

08/04/2005

Threat Type: 

Subpoena

Party Issuing Legal Threat: 

News America, Inc.

Party Receiving Legal Threat: 

Google, Inc. (Blogger)

Type of Party: 

Large Organization

Type of Party: 

Large Organization
Intermediary

Court Type: 

Federal

Court Name: 

United States District Court for the Northern District of California

Case Number: 

3:05MC80179

Publication Medium: 

Blog

Status: 

Concluded

Description: 

An anonymous blogger posted the entire contents of the New York Post's Page Six column on a blog without advertisements. On July 8, 2005, counsel for News America (the parent company of the Post) sent Google (the parent company of Blogger) a takedown notice pursuant to the Digital Millennium Copyright Act (DMCA). In the letter, counsel for News America asserted that the blog's use of Page Six content constituted copyright infringement and requested that Google remove or disable access to the blog. Counsel also requested that Google disclose contact information for the blogger. Google disabled access to the blog, but did not respond to the informal request to disclose identity of the Page Six blogger.

On August 4, 2005, News America sought a subpoena in the United States District Court for the Northern District of California to compel disclosure of the blogger's identity. The docket indicates that News America served the subpoena on Google on September 14, 2005. The docket reflects no further action after that date, and it is unclear whether Google was able to disclose the identity of the blogger.

Content Type: 

Subject Area: 

Jurisdiction: 

CMLP Notes: 

SB Reviewed

News America, Inc. v. Google Inc. (Letter)

Date: 

07/08/2005

Threat Type: 

Correspondence

Party Issuing Legal Threat: 

News America, Inc.

Party Receiving Legal Threat: 

Google, Inc. (Blogger)

Type of Party: 

Organization

Type of Party: 

Organization
Intermediary

Publication Medium: 

Blog

Status: 

Concluded

Description: 

An anonymous blogger posted the entire contents of the New York Post's Page Six column on a blog without advertisements. On July 8, 2005, counsel for News America (the parent company of the Post) sent Google (the parent company of Blogger) a takedown notice pursuant to the Digital Millennium Copyright Act (DMCA). In the letter, counsel for News America asserted that the blog's use of Page Six content constituted copyright infringement and requested that Google remove or disable access to the blog. Counsel also requested that Google disclose contact information for the blogger. Google disabled access to the blog, but did not respond to the informal request to disclose identity of the Page Six blogger.

On August 4, 2005, News America sought a subpoena in the United States District Court for the Northern District of California to compel disclosure of the blogger's identity. Please see the CMLP's database entry on the related subpoena.

Content Type: 

Jurisdiction: 

Subject Area: 

Guajome Park Academy v. DuPerry

Threat Type: 

Lawsuit

Date: 

03/24/2006

Party Issuing Legal Threat: 

Guajome Park Academy, Inc.

Party Receiving Legal Threat: 

Beau DuPerry; David McCulloch

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Southern District of California

Case Number: 

3:06CV00658

Verdict or Settlement Amount: 

$11,200.00

Legal Counsel: 

Arthur Floyd Sloane (Defendant DuPerry); Pro Se (Defendant David McCulloch)

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Pending

Disposition: 

Settled (partial)

Description: 

A group of former school employees started a website called Guajome Underground to rally school students, parents, and current and former employees to remove the school superintendent. The school claims that it discovered numerous instances of unauthorized access to a school database containing confidential information about students, including grades. The school alleges that confidential information, including the grades of a student, were posted to a "restricted" forum section of guajomeunderground.

The school sued a former student, Beau DuPerry, and a then-current employee, David McCulloch, for accessing the database and posting the confidential information, allegedly in violation of the Computer Fraud and Abuse Act and provisions of California criminal law that provide for a private cause of action. DuPerry settled and agreed to cooperate with the school. The school moved to amend its complaint in November 2006, seeking to add others defendants who allegedly had access to the forum, as well as a civil conspiracy claim and a breach of contract claim (against McCulloch only). The court granted in part and denied in part the motion to amend the complaint (it appears that the court did not permit Guajome to add additional defendants). McCulloch moved for summary judgment in July 2007, and the court denied that motion in August 2007.

Updates:

7/13/2006 - Guajome Park settled with Defendant DuPerry - $11,200

12/11/2006 - Amended Complaint filed against Defendant McCulloch

7/9/2007 - McCulloch filed motion for summary judgment

8/16/2007 - Court denied McCulloch's motion for summary judgment

11/19/2008 - Court granted in part and denied in part Guajome Park's motion for reimbursement of fees

1/21/2009 - Court granted ex parte motion to continue mandatory settlement conference

11/24/2008 - Trial is scheduled to commence on 5/26/2009

Content Type: 

CMLP Notes: 

SB Reviewed; to-do: get additional court documents

Status checked on 6/4/2008, case appears to be heading to trial. (AAB)

Updated 2/26/09 - VAF

Threat Source: 

MLRC

Jurisdiction: 

Subject Area: 

Apple v. Does

Threat Type: 

Lawsuit

Date: 

12/13/2004

Party Issuing Legal Threat: 

Apple Computer, Inc.

Party Receiving Legal Threat: 

John Does

Type of Party: 

Large Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

California Superior Court, Santa Clara County

Case Number: 

1-04-CV-032178

Legal Counsel: 

Kurt B. Opsahl, Kevin S. Bankston - Electronic Frontier Foundation, Thomas E. Moore III - Tomlinson Zisko LLP, Richard R. Wiebe - Law Office of Richard R. Wiebe

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Subpoena Quashed
Withdrawn

Description: 

On December 13, 2004, Apple filed suit against unknown defendants for misappropriation and publication of trade secrets in connection with reports about its "Asteroid" product (a FireWire audio interface for Apple's GarageBand) that appeared on Apple-related news sites, PowerPage, AppleInsider, and ThinkSecret. Apple sought and obtained permission to issue subpoenas to PowerPage, AppleInsider, ThinkSecret, and PowerPage's email service provider, Nfox.com and Karl Kraft, requesting documents relating to the identity of the news site's confidential sources.

On February 14, 2005, Jason O'Grady (from PowerPage), Monish Bhatia (hosting service provider for AppleInsider), and "Kasper Jade" (AppleInsider) moved for a protective order to prevent the discovery sought by Apple on grounds that their sources and unpublished information were protected under the reporter's shield embodied in Article I, section 2(b) of the California Constitution and California Evidence Code 1070 and the reporter's privilege under the First Amendment to the United States Constitution. they also argued that the subpoenas issued against Nfox and Kraft could not be enforced without violating the Stored Communications Act (18 U.S.C. sec. 2702(a)(1)).

The state district court denied defendants' motion to quash the subpoenas. In O'Grady v. Superior Court, 139 Cal.App.4th 1423 (Cal. Ct. App. 2006), the Court of Appeals quashed the subpoenas, holding that the federal Stored Communications Act barred enforcement of the subpoena served on PowerPage's email service provider, and that discovery of unpublished information or confidential sources from the news sites would violate California's reporter's shield provision and the First Amendment.

Apple announced that it would not appeal the ruling, and voluntarily withdrew the lawsuit in January 2007.

This case is related to Apple Computer, Inc. v. DePlume, No. 1-05-CV-33341 (Cal. Super. Ct. Jan. 04, 2005). Please see CMLP's database entry for more information on the status of that lawsuit.

Content Type: 

CMLP Notes: 

from a review of the O'Grady opinion, it looks like there was a threatening letter or two sent by Apple in this case -- to-do: see if this is true and create entry(ies) for letter(s).

Jurisdiction: 

Subject Area: 

Apple v. DePlume

Threat Type: 

Lawsuit

Date: 

01/04/2005

Party Issuing Legal Threat: 

Apple Computer, Inc.

Party Receiving Legal Threat: 

Nicholas Ciarelli (aka Nick DePlume); DePlume Organization, LLC

Type of Party: 

Large Organization

Type of Party: 

Individual
Organization

Court Type: 

State

Court Name: 

California Superior Court, Santa Clara County

Case Number: 

1-05-CV-033341

Legal Counsel: 

Terry Gross

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Settled (total)

Description: 

DePlume's blog, Think Secret, published a report about a new $500 monitor-less iMac, new iWork software, and the price and features of the Mac Mini days before MacWorld 2005. In January 2005, Apple sued DePlume and his company for misappropriation of trade secrets, seeking an injunction to bar publication of its proprietary information, money damages, and discovery of the identity of DePlume's sources. Apple's claim was unusual because DePlume was not an Apple employee and was not bound by any confidentiality agreement. Apple argued that DePlume should nevertheless be held liable because he encouraged leaks of confidential information through an anonymous email system and a voice-mail tip line.

On March 4, 2005, DePlume filed a motion to strike the complaint pursuant to California's anti-SLAPP statute (Cal. Code Civ. Proc. § 425.16). The motion remained pending for years, but the court did not issue a decision on it.

In December 2007, Think Secret announced that the parties had settled the case. Under the agreement, the full terms of which are confidential, ThinkSecret agreed to cease operations. DePlume never revealed his sources.

Related case:

Apple also sought disclosure of documents and information from Think Secret in a case relating to its "Asteroid" product. Apple initially obtained permission to issue a subpoena requiring Think Secret to produce documents identifying its confidential sources for reports about the "Asteroid" product. This subpoena was quashed in O'Grady v. Superior Court, 139 Cal.App.4th 1423 (Cal. Ct. App. 2006), in which the court held that various Apple-related news sites could block disclosure of their anonymous sources and unpublished information based on California's reporter's shield provision and the First Amendment to the US Constitution. (Please see the CMLP datatabase entry on the Apple v. Does case). 

Jurisdiction: 

Subject Area: 

Content Type: 

McMann v. Doe 2

Threat Type: 

Lawsuit

Date: 

11/20/2006

Party Issuing Legal Threat: 

Paul McMann

Party Receiving Legal Threat: 

John Doe

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Superior Court of Arizona, Maricopa County

Case Number: 

CV 2006-092226

Legal Counsel: 

Louis Hoffman, Gregory Beck - Public Citizen Litigation Group

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)
Subpoena Quashed

Description: 

Paul McMann, a Massachusetts real estate developer, sued the anonymous operator of an Internet "gripe site" about him. The website contained a photograph of Mr. McMann, the statement that he “turned lives upside down,” and a suggestion to "be afraid, be very afraid." The website also announced that it would soon be updated with specific evidence of McMann's alleged misdealings.

After a nearly identical action was dismissed in the United States District Court for the District of Massachusetts, McMann sued the anonymous operator of the site in Arizona state court, claiming defamation (the publicity and privacy claims in his previous complaint were apparently abandoned). McMann sought to subpoena ISPs to discover the website operator's identity. In January 2007, the court quashed the subpoena and dismissed the case without prejudice. The court relied on Doe v. Cahill, 884 A.2d 451 (Del. 2005), an important case from the Delaware Supreme Court holding that the First Amendment's protection for anonymous speech requires plaintiffs in defamation actions to make a heightened factual showing (meeting a summary judgment standard) before issuance of a subpoena to discover the identity of an anonymous defendant.

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