I have an interesting Lago Agrio decision for you today, Chevron Corp. v. Donziger (N.D.N.Y. 2013). The Lago Agrio plaintiffs’ PR people called to my attention. After I read it, I wondered whether they had read my Belfast Project coverage, and in particular my discussion of Wigmore’s approach to claims of a First Amendment privilege in response to a subpoena.¹The two cases aren’t identical, of course: the Belfast Project involved a claimed “oral historian’s privilege” that failed under Branzburg. This case involves a claim that the subpoena violates the First Amendment right to anonymous speech and to free association. Regular readers will probably surmise that I am not a big supporter of protecting non-privileged documents from the reach of a subpoena, although the case for protection is probably stronger in a civil context such as the Lago Agrio case than in the Belfast Project case, which involved a criminal investigation. But I have to say I question the claim of a right to anonymous speech here, assuming that the email addresses—which I’m not going to reprint here—belong to the people to whom they appear to belong. If your name is John Smith and you want to correspond with others anonymously, I should think you wouldn’t choose johnsmith@gmail.com as your email address! But today’s decision doesn’t turn on the merits of the First Amendment arguments, so there was no real reason to think that I would be unfriendly to the LAPs’ criticisms of the new decision.

Here is the case. Chevron issued a subpoena to Microsoft seeking information about thirty email addresses—in particular, the names and other identifying information concerning the users, and the IP logs and usage logs showing the IP addresses for each use of the accounts from 2003 to 2012. Note that the subpoena did not seek the contents of emails; the content of emails are not discoverable from electronic communication service providers under the Stored Communications Act, which I discussed in connection with CTB v. Twitter and In re Toft. With this information, Chevron would be able to identify the creator (or purported creator) of the email accounts and would be able to determine or infer the location from which the users of the accounts (who might not be the creator of the account) used the account over the period of the subpoena. This might allow Chevron to “infer the movement of the users over the relevant period” or to “make inferences about some of the users’ professional and personal relationships.” In other words, Chevron sought metadata that could, even without the contents of the emails, provide it with valuable information. Is this sounding familiar?

Donziger, the LAP defendants, and three John Does,²It seems clear that Simeon Tegel, the former Communications Director for Amazon Watch, is one of the three John Does. who claim to own three of the thirty email addresses, moved to quash the subpoena. Because the subpoena issued from the US District Court for the Northern District of New York, FRCP 45(c)(3) required the motion to quash to be heard in that court rather than in the Southern District of New York. However, Judge Kaplan sat in the Northern District “by designation,” probably much to Donziger and the LAPs’ dismay. Under 28 U.S.C. § 292(b), the chief judge of the Second Circuit has the power, when in the public interest, to designate any district judge of the circuit to hold court in any district within the circuit. Designation is one of the approved ways to deal with coordination of multi-district litigation, see, e.g., Manual For Complex Litigation 4th § 20.14, but I have to say that despite my suggestion, the courts have done little to consolidate the many far-flung discovery proceedings so far, and I’m not sure why they did so now.

Judge Kaplan denied the John Does’ motion to quash on the grounds that the three objectors had no standing to raise objections on behalf of the other twenty-seven because the others had the practical opportunity to challenge the subpoenas on their own, and that because the three objectors had not shown that they had a sufficient connection to the United States, they could not overcome the rule that “the interests in free speech and freedom of association of foreign nationals acting outside the borders, jurisdiction, and control of the United States do not fall within the interests protected by the First Amendment,” citing DKT Memorial Fund Ltd. v. Agency for Int’l Dev., 887 F.2d 275 (D.C. Cir. 1989). Was the judge right on the facts? It looks to me as though this argument about the reach of the First Amendment was not fleshed out by the parties before the order, and in a motion for reconsideration, the Does have submitted evidence showing that one of the three, Simeon Tegel, is indeed a US citizen.³The motion for reconsideration also sought reconsideration on the standing point, though without making such a showing of apparent plain error on the part of the judge. So it seems to me that the judge should grant at least Mr. Tegel’s motion for reconsideration, at which point he would, it seems, have to address the First Amendment issues concerning anonymous speech and freedom of assembly head-on.

Less controversially, the judge rejected the arguments of Donziger and the LAPs in favor of their motion to quash. Their claim was that disclosure of the metadata would reveal privilged information relating to the LAPs’ legal strategy. This seems like a feasible claim. Suppose, for example, that there was an email between one of the LAPs’ lawyers and a consulting expert whom the LAPs were not required to disclose to Chevron under FRCP 26. Even if the contents of the communication were not disclosed, the fact of the communication itself might provide Chevron with information it should not have been entitled to receive. The problem, according to the judge, was that the LAPs “have not identified any communications or material prepared in anticipation of litigation that would be revealed if Microsoft were to release the subpoenaed information,” or even “provided any competent evidence indicating tha the email addresses belong to any of the LAPs’ lawyers or the LAPs themselves.”

Why didn’t the Does focus on the grounds available for a protective order, e.g., “annoyance, embarrassment, [or] oppression?” Given the intrusiveness of the subpoenas, those seem like reasonable arguments to make. I’m just guessing, but here goes. To raise those grounds, the Does would have had to file a motion for a protective order under FRCP 26 in the court in which the action was pending, i.e., in the Southern District of New York, in Judge Kaplan’s court. Perhaps they focused on the narrower grounds available on a motion to quash, which is brought in the court from which the subpoena issued, in the hopes of avoiding Judge Kaplan’s tender mercies. But as we’ve seen, if that was their idea, it didn’t work.

• 1
  The two cases aren’t identical, of course: the Belfast Project involved a claimed “oral historian’s privilege” that failed under Branzburg. This case involves a claim that the subpoena violates the First Amendment right to anonymous speech and to free association. Regular readers will probably surmise that I am not a big supporter of protecting non-privileged documents from the reach of a subpoena, although the case for protection is probably stronger in a civil context such as the Lago Agrio case than in the Belfast Project case, which involved a criminal investigation. But I have to say I question the claim of a right to anonymous speech here, assuming that the email addresses—which I’m not going to reprint here—belong to the people to whom they appear to belong. If your name is John Smith and you want to correspond with others anonymously, I should think you wouldn’t choose johnsmith@gmail.com as your email address!
• 2
  It seems clear that Simeon Tegel, the former Communications Director for Amazon Watch, is one of the three John Does.
• 3
  The motion for reconsideration also sought reconsideration on the standing point, though without making such a showing of apparent plain error on the part of the judge.