is the plaintiff in a case pending
in federal court in Colorado (the `Colorado Action’). There, ACT sued ten John Doe defendants based on allegedly defamatory comments posted anonymously on `Random
Convergence,’ an internet blog administered by Daniel Drasin, located at
http:// randomconvergence.blogspot.com/ (the `Blog’).
In particular, ACT lodged claims for `trade
libel/commercial disparagement’; violations of Section 43(a) of the Lanham Act, 15 U.S. Code § 1125(a); and violations of the Colorado Consumer Protection Act, Colorado Revised Statutes § 6–1–105. . . . Drasin
is not a party in the Colorado Action.
In re Subpoena of
Daniel Drasin, supra.
As to the substance of the lawsuit, the opinion explains
that ACT is a
`career guidance service firm that
assists job seekers throughout their job search.’ See Complaint ¶
7. It `assist[s] clients in developing a marketing plan that acts as a road map
for the clients' job search, identifying the client's strengths and skills
while providing solutions for any weaknesses, and locating industry options and
opportunities in an effort to maximize the client's chances of securing gainful
employment.’ Id.
As
noted, Drasin is the administrator of a blog known as Random Convergence. See Affidavit
of Robert J. Gerberg, Jr., President & Chief Executive Officer of ACT, ¶ 9
(`Gerberg Aff.,’ ECF 6–4). According to ACT, Drasin exercises editorial control
over the blog. Id. Since approximately 2007, individuals have
posted over 350 anonymous comments on Random Convergence, many of which
disparage ACT's services. See id. ¶¶ 11, 17; Opp. Exh. C at 16
(ECF 6–3) (screen prints of posts and comments about ACT on Random
Convergence).
ACT claims the anonymous
postings are `a sophisticated and coordinated campaign’ intended to `damage
ACT's business and reputation.’ . . . In its view, `[t]he entries on Random
Convergence are designed to maximize the effect of the blog by sending spam and
driving up the blog's rankings and visibility in the search engine Google.’ Gerberg
Aff. ¶ 15. ACT reports it has `received numerous emails from potential or
current clients stating that because of the blog, they will no longer be using
ACT services.’ Id. ¶ 27. Additionally, ACT claims it has `asked
to post comments on the Random Convergence Blog to rebut some of the false
statements, but Mr. Drasin refused these requests.’ Id. ¶ 32.
In re Subpoena of
Daniel Drasin, supra.
The judge explains that on March 11, 2013,
U.S. Magistrate Judge Mix authorized
expedited discovery and granted ACT's motion for leave to serve third party
subpoenas on Drasin. As noted, two subpoenas were previously issued to Drasin
by this Court. They commanded him, in his individual capacity and as
administrator of the Random Convergence blog, to produce the`“true name,
address, telephone number, e-mail address, and Media Access Control address of
each of the ten Doe Defendants,’ based on `the IP [Internet Protocol] addresses
from which they posted and edited posts about [ACT] and its employees.’ . . .
In re Subpoena of
Daniel Drasin, supra.
Drasin moved to quash the subpoenas, but the judge denied
the motion. In re Subpoena of Daniel
Drasin, supra. On August 15, 2013, Drasin, “through counsel, wrote an email
to counsel for ACT” in which he “outlined the different ways in which a visitor
to the Blog may post a comment”. In re Subpoena of Daniel Drasin, supra. He said
`[w]hen someone wishes to post a
comment on Random Convergence, he or she fills out a form on the blogger
website and then posts his or her comments. The poster can optionally sign the
post with a Google e-account-name, an email address, an OpenId, a free-form
name or URL, or simply `Anonymous.’
`If any of the non-anonymous options
are used, the comment will appear on the blog with the comment beginning as
follows: “ says . . .”
followed by the comment. If the poster chooses to use a Google-account-name,
the moniker will be underlined and selectable in the viewing webpage. Selecting
the moniker takes one to the public information that the poster/Google user has
chosen to make available.
If the poster chooses another moniker, the moniker
may simply be text and read “un-selectable.” If the poster chooses to post as
Anonymous, then the comment will begin with “Anonymous says . . .” followed by
the body of the post. The word Anonymous will not be selectable and there will
be no other information available.’
In re Subpoena of
Daniel Drasin, supra.
The judge also noted that Drasin
further advised that most individuals
who posted comments on the Blog did so anonymously, and he explained that he
had no records of those who chose to remain anonymous. . . . Drasin
did, however, provide the information he possessed about the commenters who had
not posted anonymously, all of which appears to be information that would be
available to anyone who visits the Blog. . . .
The letter concluded
. . . : `In short, we have provided you with all the relevant
information that Mr. Drasin has with respect to your discovery requests, and I
assume that this matter is now closed with respect to him.’
In re Subpoena of Daniel
Drasin, supra.
ACT responded with a letter in which, among other things, it
expressed ACT's belief that Drasin has
the information ACT requested because Drasin `utilized a program known as
“Sitemeter” which, among other things, tracks and records the IP address of
every person and computer which posted or commented on the Random Convergence blog.’
In re Subpoena of
Daniel Drasin, supra. Drasin’s
lawyer responded and he confirmed
Drasin has an account with Site Meter, and
he advised ACT that Drasin `is amenable to providing [ACT] with an
authorization so that [ACT] can access [Site Meter's] records.’ . . . He
concluded: `Mr. Drasin denies that he has done anything improper. If you have
facts to the contrary, please provide them. Otherwise, I assume that this
exercise is a fishing expedition and would remind you of your obligations to
the Court.’ . . .
In re Subpoena of
Daniel Drasin, supra.
The parties continued to negotiate about these matters, a
process which culminated on December 10, 2013, when Judge Mix authorized ACT to
“serve an additional . . . third-party subpoena for the `limited purpose of
ascertaining the ten Doe Defendants' personally identifiable information.’” In re Subpoena of Daniel Drasin, supra. He also ordered that the
`subpoena shall be limited to the production of any
hard drives, servers, and any other devices used by Mr. Drasin to administer
the Random Convergence B log and data stored online via website or application.
Plaintiff may make a forensic copy of the data on each device and may conduct
an appropriate forensic examination of the data to ascertain the information
sought by Plaintiffs original subpoena. Plaintiff shall return any hard drive,
server, or other device produced by Mr. Drasin within thirty (30) days of
production of said devices.’
In re Subpoena of
Daniel Drasin, supra (emphasis in the original).
ACT served Drasin with the Subpoena on December 28, 2013. In re Subpoena of Daniel Drasin, supra. It orders Drasin to produce “`[a]ny hard
drives, servers, and any other devices used by YOU to administer the Random
Convergence Blog and data stored online via website or application. . . .’” In re Subpoena of Daniel Drasin, supra.
On the same day, Drasin’s lawyer emailed ACT and asked if it had subpoenaed
Site Meter. In re Subpoena of Daniel Drasin, supra.
ACT responded that it had issued a
subpoena to Site Meter, but that it would not `give up on seeking the forensic
examination.’ . . . On January 21, 2014, Site Meter filed numerous objections
to the third-party subpoena it had been issued and then advised ACT that it had
`no responsive documents in its possession, custody, or control. . . .’
In re Subpoena of
Daniel Drasin, supra.
That brings us back to Drasin’s motion to quash the subpoena
directed to him. He sought to quash the
subpoena under Rule 45(c)(3) of the Federal Rules of Civil Procedure, which
lets a judge quash a subpoena if it “subjects a person to undue burden.” In re
Subpoena of Daniel Drasin, supra.
The judge found the subpoena did, indeed, subject Drasin to an “undue
burden.” In re Subpoena of Daniel Drasin, supra.
Actually, she found that the subpoena imposed
two types of burden on Drasin. First,
in order to comply with the subpoena, Drasin must surrender his personal hard
drives to ACT for up to thirty days. Personal computers generally cannot
function without their hard drives, so this requirement would force Drasin to
spend up to thirty days without the use of his personal computer. . . .
In today's technology-dependent
world, this burden is significant. Second, forcing Drasin to surrender his hard
drives to ACT would give ACT access to Drasin's personal files.
In re Subpoena of
Daniel Drasin, supra.
As to the first issue, she noted that ACT “has not provided
any evidence, beyond its own unsupported conjecture, that Drasin's response was
untruthful, incomplete, or inadequate.” In re Subpoena of Daniel Drasin, supra. In other words, ACT had not shown there was
any reason to believe relevant evidence would be found on Drasin’s hard
drives. As to that, the judge explained
that
ACT also suggests Drasin must be
withholding relevant information because `if Mr. Drasin really possessed as
little information as he claimed, why did he spend so much time and money
fighting the subpoena in the first place?’ Status Report at 2. However, just as
juries are instructed not to draw negative inferences from evidentiary
objections, the Court will not infer mendacity from Drasin's decision to
exercise his legal right under Federal Rule of Civil Procedure Rule 45 .
to object to the subpoenas.
In
sum, it appears from the record that very little benefit, if any, will result
from the Subpoena. ACT has not proffered any credible reason for the Court to
disbelieve Drasin's contention that he does not have the information sought by
ACT.
In re Subpoena of
Daniel Drasin, supra.
As to the other burden, she explained that
`[a] laptop and its storage devices
have the potential to contain vast amounts of information. People keep all
types of personal information on computers, including diaries, personal
letters, medical information, photos and financial records. Attorneys' computers
may contain confidential client information. Reporters' computers may contain
information about confidential sources or story leads. Inventors' and corporate
executives' computers may contain trade secrets.’
Requiring Drasin to grant ACT access to this
personal information certainly constitutes a burden. . . . Magistrate Judge
Mix's order prohibits ACT from using Drasin's personal information for any
reason other than to protect its own rights in the Colorado Action, but even a
limited invasion of one's privacy is still an invasion.
These burdens are particularly
troubling considering that Drasin has not been accused of any illegality, nor
is he a defendant in the Colorado Action. Rather, he is merely the
administrator of a blog on which other individuals posted allegedly defamatory
comments.
In re Subpoena of
Daniel Drasin, supra (quoting U.S. v.
Arnold, 454 F.Supp.2d 999 (U.S. District Court for the Central District of California 2006)).
Finally, she noted that while
ACT was unable to obtain the requested
information from Site Meter. But, the information it seeks is available from at
least one other source: Google. Indeed, ACT's motivation for subpoenaing hard
drives and servers owned by Drasin is curious because, as ACT acknowledges, . .
. Random Convergence blog is hosted by Google, and not on a hard drive or
server owned by Drasin.
In re Subpoena of
Daniel Drasin, supra.
The judge also explained that the
District Court of Colorado has already
granted leave for ACT to serve a subpoena on Google, but the record does not
reflect whether ACT has served that subpoena on Google. If ACT has chosen not
to serve the subpoena on Google, it has failed to explain adequately its
reasons for declining to do so. Alternatively, if ACT did serve
the subpoena on Google and Google was unable to provide ACT with the
information it seeks, then it would be even less likely that Drasin possess
that information.
In re Subpoena of
Daniel Drasin, supra.
She therefore granted Drasin’s motion to quash the
subpoena. In re Subpoena of Daniel Drasin, supra.
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