Case of the Day: In re Application for Appointment of Commissioner

The case of the day is In re Application for Appointment of a Commissioner re Request for Judicial Assistance (N.D. Cal. 2011). It involves a request by a Spanish plaintiff for issuance of a subpoena to WordPress.com and Automattic, Inc., which, incidentally, do a great job hosting Letters Blogatory. The applicant was Yamaha Motor España, S.A., which was a defendant in two Spanish labor disputes pending in Barcelona. The labor disputes erupted after Yamaha announced plans to close a Spanish plant.

Yamaha asserted that “nocierre”, an anonymous blogger who blogs at january26th.wordpress.com, had published “false and misleading” postings and had referred in the posts to work slowdowns that, it says, would be illegal under Spanish law (the union denied orchestrating a slowdown). Yamaha claimed that the posts could be offered as evidence in the Spanish proceedings to rebut the union’s assertion that it had not organized a slowdown. WordPress refused Yamaha’s request to disclose the identity of “nocierre” and refused Yamaha’s request to take down the blog on the grounds that it contained defamatory material. Yamaha then asked the federal court to issue a subpoena to WordPress for the identity of nocierre. The court, correctly in my view, found that the statutory prerequisites for issuance of the subpoena were satisfied and that the Intel factors favored issuance of the subpoena. As we noted in the discussion of CTB v. Twitter, the Stored Communications Act does not protect user identities or other non-content information. Yamaha also asked for and received a ruling that the subpoena was permissible under the Cable Privacy Act, 47 U.S.C. § 551. Under § 551(c)(2)(B), personally identifiable information may be disclosed pursuant to a court order, “if the subscriber is notified of such order by the person to whom the order is directed.” So as Yamaha says, there doesn’t seem to be a Cable Privacy Act issue here. I wonder, however, whether WordPress is a “cable operator” within the meaning of the statute, or whether this was overkill on Yamaha’s part. I don’t know enough about WordPress’s business to say.

More importantly, I think, as I indicated in the post on the CTB case, that there are significant First Amendment issues about the right (or lack of a right) to anonymity, and that Yamaha should expect a fight. Both WordPress and “nocierre” will have an opportunity to object to providing the requested information after the subpoena issues.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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