The Volokh Conspiracy - Subpoena of Internet Service Provider Records in a Divorce Case:

From London v. Does 1-4, an unpublished Ninth Circuit memorandum from last week:

In 2005, Jennifer London, a United States citizen who was domiciled in St. Martin, began divorce and child custody proceedings against her husband, Richard London, also a United States citizen, in St. Martin, a French territory governed by French law. Jennifer sought a divorce from Richard based on adultery, a ground for a fault-based divorce. To establish the adultery, Jennifer introduced evidence in the divorce proceeding to suggest that Richard had used five pseudonymous Yahoo! email accounts to solicit sex on the Internet. Richard denied that the email accounts belonged to him and claimed that Jennifer had fabricated the evidence.

Thereafter, Jennifer filed an application in district court for an order to conduct discovery on the five Yahoo! email accounts under 28 U.S.C. § 1782 for use in her foreign divorce case. The district court granted the application and issued a subpoena to Yahoo! directing it to produce: (1) documents identifying the names, addresses, and telephone numbers provided by the users of the five email accounts; (2) documents describing the dates on which the five email accounts were created; (3) documents describing the Internet protocol address (IP) from which the five email accounts were created; (4) documents identifying Internet groups in which the account users participated; and (5) documents reflecting group board postings made by the account users. Jennifer served Yahoo! with the subpoena, and agreed to waive the right to documents listed in item five. Richard and the four Does moved to quash the subpoena, which the district court denied....

The proof sought, given the nature and character of the foreign case, is critical to establish adultery, secure the divorce, and defend against allegations of fabrication. Such evidence may be the only way to identify the user of the email accounts used to solicit adulterous sex. The request is not an attempt to avoid foreign evidence rules, and is not unduly intrusive or burdensome because it seeks to gather only identifying information for the accounts, such as the names and addresses of the users, and not the content of any communication. Given the need for the evidence, and the minimal invasion required, the [Intel Corp. v. Advanced Micro Devices] factors weigh in favor of granting the request.

Appellants’ contention that granting the [discovery] request violates their First Amendment right to anonymous speech is also without merit. Appellants cite no authority for the proposition that the First Amendment bars release of identifying data for email accounts used to solicit sex partners on the Internet. We have held that exposure of some identifying data does not violate the First Amendment. See People of State of Cal. v. F.C.C., 75 F.3d 1350, 1362 (9th Cir. 1996) (holding that order identifying phone numbers through a caller identification service did not violate the First Amendment right to speak anonymously). Thus, because a legal privilege was not implicated, the district court properly denied the motions to quash the subpoena.

	[Eugene Volokh, May 29, 2008 at 7:46pm] Trackbacks Subpoena of Internet Service Provider Records in a Divorce Case: From London v. Does 1-4, an unpublished Ninth Circuit memorandum from last week: In 2005, Jennifer London, a United States citizen who was domiciled in St. Martin, began divorce and child custody proceedings against her husband, Richard London, also a United States citizen, in St. Martin, a French territory governed by French law. Jennifer sought a divorce from Richard based on adultery, a ground for a fault-based divorce. To establish the adultery, Jennifer introduced evidence in the divorce proceeding to suggest that Richard had used five pseudonymous Yahoo! email accounts to solicit sex on the Internet. Richard denied that the email accounts belonged to him and claimed that Jennifer had fabricated the evidence. Thereafter, Jennifer filed an application in district court for an order to conduct discovery on the five Yahoo! email accounts under 28 U.S.C. § 1782 for use in her foreign divorce case. The district court granted the application and issued a subpoena to Yahoo! directing it to produce: (1) documents identifying the names, addresses, and telephone numbers provided by the users of the five email accounts; (2) documents describing the dates on which the five email accounts were created; (3) documents describing the Internet protocol address (IP) from which the five email accounts were created; (4) documents identifying Internet groups in which the account users participated; and (5) documents reflecting group board postings made by the account users. Jennifer served Yahoo! with the subpoena, and agreed to waive the right to documents listed in item five. Richard and the four Does moved to quash the subpoena, which the district court denied.... The proof sought, given the nature and character of the foreign case, is critical to establish adultery, secure the divorce, and defend against allegations of fabrication. Such evidence may be the only way to identify the user of the email accounts used to solicit adulterous sex. The request is not an attempt to avoid foreign evidence rules, and is not unduly intrusive or burdensome because it seeks to gather only identifying information for the accounts, such as the names and addresses of the users, and not the content of any communication. Given the need for the evidence, and the minimal invasion required, the [Intel Corp. v. Advanced Micro Devices] factors weigh in favor of granting the request. Appellants’ contention that granting the [discovery] request violates their First Amendment right to anonymous speech is also without merit. Appellants cite no authority for the proposition that the First Amendment bars release of identifying data for email accounts used to solicit sex partners on the Internet. We have held that exposure of some identifying data does not violate the First Amendment. See People of State of Cal. v. F.C.C., 75 F.3d 1350, 1362 (9th Cir. 1996) (holding that order identifying phone numbers through a caller identification service did not violate the First Amendment right to speak anonymously). Thus, because a legal privilege was not implicated, the district court properly denied the motions to quash the subpoena.