Procedural Constraints on Discovering the Identity of Anonymous Sources, Even Outside Claims Based on Public Speech?

Solers, Inc. v. Doe, decided today by the D.C. Court of Appeals, strikes me as a very important case for litigators. The facts:

Appellant Solers, Inc. “is a for-profit Virginia corporation with its principal place of business in Arlington, Virginia. [Its] work principally consists of developing software and other technology for agencies within the Department of Defense.” Solers is a privately held company, owned by its employees.

Appellee SIIA describes itself as “the principal trade association for the software and digital content industry” and explains that “[o]ne of [its] chief missions is to protect the intellectual property of member companies by fighting the software piracy that threatens to undermine the entire industry.” While Solers’ work is primarily in the same industry that SIIA seeks to protect, Solers is not a member of SIIA.

In order “[t]o fulfill its mission, SIIA [has] established an Anti-Piracy Division and developed anti-piracy programs involving both education and enforcement.” “SIIA’s enforcement program enables sources with knowledge of software piracy to report anonymously to SIIA via telephone or the Internet about companies [committing piracy] ....” To encourage reporting, “SIIA allows individuals to submit information ... on a confidential basis.” Through this program, John Doe, an “individual,” reported that Solers was engaged in illegal activity. Accusations of copyright infringement followed, and Solers sued Doe but has not been able to learn his or her identity....

SIIA acknowledges that, “[i]n March 2005, [it] received a communication via the Internet from [Doe] who alleged that Solers was using unlicensed software.” Soon thereafter, on April 29, 2005, SIIA’s attorney wrote to the President of Solers, accusing Solers of “copyright infringement.” The letter stated that SIIA “has evidence that Solers, Inc. is engaged in the unlawful copying and use of software published by the software publishers listed in [the attached exhibit] in violation of the Copyright Act, Title 17 U.S.C. § 501, et seq.” The letter announced that “[SIIA is] prepared to seek remedies available under the Copyright Act,” but explained that SIIA “prefer[s] to work with companies to reach a resolution that is quick, fair and out of the public spotlight ... [through] a three part process [that leads to] an easy and quick settlement ....”

SIIA’s letter demanded that Solers complete an internal audit of its software programs, instructed Solers on how to complete the audit, and requested that Solers deliver the results to SIIA. According to SIIA’s letter, once the audit was completed, the parties would negotiate a settlement and SIIA would release Solers “from all claims and causes of action for copyright infringement.” The letter warned, however, that “if Solers [] is unwilling to promptly conduct an audit and the other activities mentioned [in the letter], [Solers] should be aware that SIIA will not hesitate to initiate litigation against Solers [] for copyright infringement.” The letter did not provide any information about the alleged “evidence” of Solers’ “copyright infringement,” or any details regarding the source of this “evidence.” ...

Solers ... asserts that “[a]s a result of the communications between Solers and SIIA ..., Solers satisfied SIIA that [Doe’s] allegations were false. On Friday, May 13, 2005, counsel for SIIA confirmed to [Solers’ attorney] that SIIA had ‘closed its file’ on Solers.” (SIIA states that it decided not to pursue a claim against Solers in order to protect the identity of John Doe, not because it concluded that his allegations were false.)

The question is whether Solers could just subpoena SIIA for information that would help Solers learn Doe's identity, so that Solers can sue Doe. Under standard discovery rules, subpoenaing third parties for information that helps uncover a potential defendant's identity is generally just fine, so long as the information is likely to lead to the discovery of relevant evidence (surely so as to the identity of a defendant).

But in recent cases involving online libel, courts (in cases such as Doe v. Cahill and Krinsky v. Doe 6) have developed doctrines that help protect anonymous speakers against revelation of their identity. Most court decisions in this field conclude that while in principle the speakers could be unmasked, the plaintiffs must generally show that there's some potential merit to their case.

That way, a company that doesn't like some criticisms, and suspects that the criticisms were posted by an employee, can't just sue on some trumped-up legal theory, discover who posted the criticisms, and then drop the lawsuit and fire the employee. On the other hand, if a company does have a credible case (e.g., for disclosure of trade secrets, libel, and so on), it would be able to use subpoenas to try to discover the identity of the speaker, once it shows a court that there is indeed a credible case. (All this is limited to subpoenas as other coercive discovery techniques: If the third party, such as the SIIA in this instance, is willing to turn over the information voluntarily, this test doesn't apply, and the turnover is just fine, in the absence of some promise by the third party to keep matters confidential, or some other confidentiality obligation such as a statutory prohibition on disclosure absent a subpoena.)

Solers applies this principle beyond anonymous postings aimed at the whole world, and to anonymous tips given to a private organization. Even in such cases, the D.C. Court of Appeals holds, the subpoena can't be enforced unless certain showings are made (whether they can be made in this case was left for the trial court to decide on remand):

When presented with a motion to quash (or to enforce) a subpoena which seeks the identity of an anonymous defendant, the court should: (1) ensure that the plaintiff has adequately pleaded the elements of the defamation claim, (2) require reasonable efforts to notify the anonymous defendant that the complaint has been filed and the subpoena has been served, (3) delay further action for a reasonable time to allow the defendant an opportunity to file a motion to quash, (4) require the plaintiff to proffer evidence creating a genuine issue of material fact on each element of the claim that is within its control, and (5) determine that the information sought is important to enable the plaintiff to proceed with his lawsuit.

It seems likely that the same would apply not just to defamation claims but also to other claims in other fact patterns, such as claims that a confidential source has breached a confidentiality agreement, revealed a trade secret, or infringed copyright. It might even apply (though the matter is less clear) when the plaintiff simply claims that the source has some information that's relevant to a lawsuit against someone else altogether, and that the plaintiff wants to identify the source to then subpoena him for that information.

The court says that it's not deciding anything outside the context of defamation cases, and other "alleged injur[ies]" that are "a consequence of the defamation" (such as the alleged interference with business relations involved here). But the logic of the court's opinion would apply to many situations involving anonymous speakers, and not just those who are accused of libel.

And this is especially so because whatever the plaintiff's current claim, an anonymous source might worry that the plaintiff might sue the source for defamation if the source's identity is revealed. Limiting the protection against subpoenas to cases where there's already a defamation lawsuit would thus undermine whatever benefit such protection is supposed to provide.

This may all be quite sensible, or it might not be. My point is that this is a very important step that should be of interest to litigators in a wide range of cases, even ones far afield from the public speech context in which the anonymous speaker protection doctrine arose.

Another interesting case in this line, from the Middle District of Pennsylvania. The court held that a newspaper had standing to assert the First Amendment rights of commenters on its web site to remain anonymous. This fight is huge for various media organizations, and thankfully the trend seems to be to protect anonymity.
8.13.2009 9:17pm
Soronel Haetir (mail):
Would asserting protection for anonymous commenters in the newspaper case possibly defeat section 230 protection for the newspaper itself?

As for the OP, I thought false allegation of criminal conduct was at the very heart of defamation claims so would think that a fairly easy route to proving a legitimate claim to the source.
8.13.2009 9:53pm
Dave N (mail):
Solers, Inc. v. Doe, Doe v. Cahill and Krinsky v. Doe
Boy, this Doe guy sure does get around.
8.13.2009 10:30pm

I thought false allegation of criminal conduct was at the very heart of defamation claims so would think that a fairly easy route to proving a legitimate claim to the source.

But there are other elements to the claim. Some of these courts are requiring that the plaintiff essentially establish his whole prima facie case before ordering disclosure.

Would asserting protection for anonymous commenters in the newspaper case possibly defeat section 230 protection for the newspaper itself?

Interesting. I would argue that asserting the First Amendment rights of someone who posted on your web site is different than taking an editorial role in their comments in a way that might defeat 230 immunity. Nonetheless, your question makes media lawyers like me sweat a bit.
8.14.2009 5:56am
Dr. V.,

Just a little friendly critique of your post - I'm not a lawyer, but even so I normally understand your articles quite well. They are almost always extremely clear. In this case, however, I couldn't figure out what the court actually held from the text of your post. Could Solers get his subpoena or not?

Just FYI, since I know good writing is important to you.

Thanks for the great blog.

[Sorry; I revised the post to try to clarify a bit, though I'm not sure how much it helped -- this is a complex and technical issue, and I'm afraid I don't have the time to edit further, sorry to say. -EV]
8.14.2009 8:35am
Thanks, Dr. V. The edit works for me!
8.14.2009 11:14am
Hmm, important the case may be, but not necessarily broad in its application.

It's important at the outset to note that the appellee here, the Software and Information Industries Association, was a THIRD-PARTY to the lawsuit between the plaintiff company and the anonymous libeler. The appeal was of the decision not to enforce a third-party subpoena, which, as litigators will tell you, are quite apt to be quashed even on the best of facts. I once had a third-party supoena quashed after the opposing attorney's golf date with the presiding judge of the district.

In fact, it appears that the real damage was done by the SIIA's inquiry and demand, not by the anonymous complaint which sparked the demand. That would seem to have triggered the company's concerns about future DoD contracts, the violations of its security clearances, and the like. "Give me the contents of your computers," is not something the DCAA would like to see in a file. And the SIIA seemed to run screaming from the very prospect of being sued by the company, noting that it was dropping its investigation to prevent the anonymous complainant from being revealed.

On the whole, however, what this shows is that the D.C. Court of Appeals, true to form, is not as fact-intensive as many other courts, including the Maryland and Delaware courts cited in the opinion. This is not as bad as it sounds, because the DCCA is also quite willing to reopen matters and "correct" them if petitioned adequately.

Thus, it may be true that this decision sanctions a private agreement to protect a "snitch." But it also may be that a differently-handled case might have resulted in a different result.
8.14.2009 2:15pm

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