Brodie v. Independent Newspapers, Inc. (Subpoena) [1]

Real estate developer and business owner Zebulon Brodie subpoenaed Independent Newspapers, Inc. [2] ("INI") seeking the identity of three anonymous commenters to a community forum [3] hosted by INI.  The subpoena issued in connection with a defamation lawsuit Brodie filed against INI and John Doe defendants in Maryland state court. 

According to a brief [4] filed on appeal, the lawsuit revolves around statements criticizing Brodie for selling his historic, pre-Civil War home to another developer (the home subsequently burned down) and accusing him of maintaining a dirty Dunkin' Donuts establishment and letting trash "waft" into a nearby waterway.  Appellant's Brief, at 4-6 [4].  INI removed the disputed comments after Brodie complained to it, but Brodie sued nonetheless.

INI moved to dismiss the complaint, arguing that section 230 of the Communications Decency Act [5] (CDA 230) immunized it from liability for comments posted by third parties.  At the same time, Brodie served a subpoena demanding that INI identify the Doe defendants "CorsicaRiver," "chatdusoleil," and "Born &amp Raised Here."  INI moved to quash the subpoena and for a protective order, arguing that Brodie had failed to make the legal and evidentiary showing necessary to overcome First Amendment protection for anonymous speech.  The trial court dismissed the lawsuit against INI based on CDA 230, but ordered INI to provide identifying information for the anonymous commenters.

INI filed a motion for reconsideration, which the court granted.  On reconsideration, the court determined that the statements about the sale and burning of Brodie's home were not defamatory statements "of and concerning" Brodie, and thus could not support a claim for defamation or a subpoena seeking the identity of those posters.  The court determined, however, that the statements relating to his Dunkin' Donuts establishment could support a claim for defamation, and it ordered the unmasking of the individuals who made those statements. 

INI then requested the specific allegations of defamation related to the food-service establishment, and Brodie's counsel responded with a letter and a copy of the relevant forum threads indicating that the posters responsible for the statements about the Dunkin' Donuts were "RockyRacoon MD" and "Suze," who were not named as defendants in the complaint.  Brodie served a new subpoena seeking to identify these two posters as well as "CorsicaRiver," "chatdusoleil," and "Born &amp Raised Here," who had been protected by the court's earlier decision on reconsideration because their statements only related to the burning of the house.  INI moved to quash this second subpoena, but the court denied the motion and ordered INI to comply.  

INI appealed.  The Maryland Court of Appeals heard oral argument in the case on December 8, 2008.

Update:

2/27/2009: The Court of Appeals of Maryland reversed [6] the district court and quashed the subpoena.  It held that disclosure of the posters' identities would be improper because Brodie did not have a valid cause of action for defamation against any of them.  Specifically, the court held that Brodie could not obtain the identities of "CorsicaRiver," "chatdusoleil," and "Born &amp Raised Here" because the trial court had already ruled that their statements were not "of and concerning" him.  The court held that Brodie had no valid cause of action against "RockyRacoonMD" and "Suze" because the statute of limitations barred his any claim he might have had against them -- he had not named them in his original complaint nor timely moved to amend his complaint to include them.