jennifer stisa granick, esq., ca bar no. 168423 stanford...

NOTICE OF MOTION

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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

PRIMUS TELECOMMUNICATIONS GROUP, INC., Plaintiff, v. JOHN DOES 1 THROUGH 15,

Defendants.

) ) ) ) ) ) ) ) ) ) ) ) )

Case No. _______________

E.D. Virginia Case No. 02-1842

NOTICE OF MOTION AND MOTION TO QUASH SUBPOENA TO YAHOO! INC.

ORAL ARGUMENT REQUESTED

Date: March 21, 2003 Time: 9:00 am Dept.: TBD

PLEASE TAKE NOTICE that on __________ Movants “Richb01803,” “Netpuppy666,”

and “Devilnthedeepblusea” through their undersigned counsel, will move the Court pursuant to Federal

Rule of Civil Procedure 45(c)(3)(A)(iii) and Local Rule 7.2, to quash a subpoena issued by Primus

Telecommunications Group, Inc. to third party Yahoo! Inc. Fed. R. Civ. P. 45(c)(3)(A)(iii) provides

Jennifer Stisa Granick, Esq., CA Bar No. 168423 STANFORD LAW SCOOL CENTER FOR INTERNET AND SOCIETY 559 Nathan Abbott Way Stanford, California 94305-8610 Telephone: (650) 724-0014 Facsimile: (650) 723-4426 Attorneys for Movants AKA “RICHB01803,” “NETPUPPY666,” AND “DEVILNTHEDEEPBLUSEA” ON YAHOO!

NOTICE OF MOTION

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that “[o]n timely motion, the court by which a subpoena was issued shall quash or modify the subpoena

if it requires disclosure of privileged or other protected matter and no exception or waiver applies."

Good cause exists to quash the subpoena because Plaintiff cannot make a showing that their

interest in obtaining the true identity of Movants on Yahoo!, outweighs Movants’ First Amendment right

to speak anonymously on the Internet. Movants seek leave of the Court to appear under their internet

pseudonyms to avoid disclosure of Movants’ true identities and to protect Movants’ First Amendment

rights.

Defendant’s motion is based upon this Notice of Motion and Motion to Quash Subpoena, the

Declaration of Counsel Jennifer Granick, on all papers and records on file herein, and on evidence and

argument to be presented at the time of hearing.

DATED: February 5, 2003 Respectfully submitted,

By: __________________________________

Jennifer Stisa Granick, Esq. California Bar No. 164823 STANFORD LAW SCHOOL

CENTER FOR INTERNET AND SOCIETY 559 Nathan Abbott Way Stanford, CA 94305

Tel. (650) 724-0014

Attorneys for Movants aka “Richb01803,” “Netpuppy666,” and “Devilnthedeeplblusea”

MOTION TO QUASH SUBPOENA

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Jennifer Stisa Granick, Esq., CA Bar No. 168423 STANFORD LAW SCHOOL CENTER FOR INTERNET AND SOCIETY 559 Nathan Abbott Way Stanford, California 94305-8610 Telephone: (650) 724-0014 Facsimile: (650) 723-4426 Attorneys for Movants AKA “RICHB01803,” “NETPUPPY666,” AND “DEVILNTHEDEEPBLUSEA”


FOR THE NORTHERN DISTRICT OF CALIFORNIA


PRIMUS TELECOMMUNICATIONS GROUP, INC., Plaintiff, v. JOHN DOES 1 THROUGH 15,

Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. __________________


MOTION TO QUASH SUBPOENA TO YAHOO! INC. ORAL ARGUMENT REQUESTED



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TABLE OF CONTENTS

TABLE OF AUTHORITIES ..................................................................................................... ii I. INTRODUCTION ……………………………………………………………………1

II. STATEMENT OF FACTS……………………………………………………………3

A. YAHOO! MESSAGE BOARDS ............... ………………………………………3

B. THE YAHOO! SUBPOENA / PROCEDURAL BACKGROUND......................... 6

III. ARGUMENT................................................................................................................ 6

A. MOVANTS HAVE A FIRST AMENDMENT RIGHT TO SPEAK ANONYMOUSLY ON-LINE............................................................................... 6

B. MOVANTS RIGHT TO REMAIN ANONYMOUS DESERVES THE HIGHEST DEFERENCE BECAUSE MOVANTS ARE NOT PARY TO THE SUIT AND MOVANTS HAVE NOT BEEN ACCUSED OF WRONGDOING.................................................................................................... 8

C. THIS COURT SHOULD QUASH PLAINTIFF’S SUBPOENA BECAUSE PLAINTIFF FAILS THE 2THEMART TEST AND OFFERS NO COMPELLING REASON FOR THIS COURT TO IGNORE MOVANTS’ FIRST AMENDMENT RIGHTS ......................................................................... 10

IV. CONCLUSION.......................................................................................................... 13


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TABLE OF AUTHORITIES

CASES

ACLU v. Johnson, 4 F. Supp. 2d 1029 (D.N.M. 1998), aff’d, 194 F.3d 1149

(10th Cir. 1999) .................................................................................................................. 7

ACLU v. Miller, 977 F. Supp. 1228 (N.D. Ga. 1997)................................................................ 7

Bates v. City of Little Rock, 361 U.S. 516 (1960).................................................................. 8, 9

Buckley v. Am. Constitutional Law Found., 525 U.S. 182 (1999)............................................... 6

Columbia Ins. Co. v. Seescandy.com,185 F.R.D. 573 (N.D. Cal. 1999) ................................ 2, 9

Dendrite International, Inc. v. John Doe No. 3, 342 N.J.Super. 134 (App.Div.2001) .............. 3, 4

Doe v. 2TheMart.com Inc., 140 F. Supp. 2d 1088 (W.D. Wash. 2001)............................ passim

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995) ................................................... 6, 7

Miami Herald Publ‘g Co. v. Tornilllo, 418 U.S. 241 (1974)........................................................ 4

NAACP v. Alabama, 357 U.S. 449 (1958) ........................................................................... 8, 9

New York Times Co. v. Sullivan, 364 U.S. 254 (1964).............................................................. 8

Reno v. ACLU, 521 U.S. 844 (1997)................................................................................ 4, 5, 7

CODES AND RULES

Fed. R. Civ. P. 45(c)(3)(A)(iii)................................................................................................... 1

MOTION TO QUASH SUBPONEA

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I. INTRODUCTION

Equally important to the freedom to speak is the freedom to listen and participate in public

forums without government sanctioned harassment. In the instant matter, Plaintiff, Primus

Telecommunications, asks this Court to unmask the identities of Movants (aka “Richb01803,”

“Netpuppy666,” and “Devilnthedeepblusea”) who participated in an on-line message board devoted to

discussion of Primus. Plaintiff does not seek Movants’ personal identities because of anything the

Movants have done or are alleged to have done. Instead, Movants have been thrust into this Court’s

attention merely on Plaintiff’s belief that another party, the defendant in a lawsuit in the Eastern District

of Virginia, may have communicated with the Movants. The question before the Court is whether

plaintiff should be permitted to use the procedures of this Court to force disclosure of the identities of

individuals who anonymously participated in an Internet message board, where Plaintiff has made no

showing that anonymous speakers acted unlawfully or in any way violated Plaintiff’s rights.

Given Movants’ tenuous connection to Plaintiff’s suit, there is no compelling reason for this

Court to override Movants’ First Amendment right to remain anonymous. Plaintiff has filed suit in the

Eastern District of Virginia against one presently anonymous defendant. See the Complaint Filed in that

suit, attached as Exhibit A. On December 31, 2002, Plaintiff served a subpoena on Yahoo! Inc, host of

the aforementioned message-board. See Plaintiff’s subpoena, attached as Exhibit B. In its subpoena,

Plaintiff demands Yahoo! disclose the identifying information of not only the defendant but also the

identifying information of eleven other users (including the three Movants). See Exhibit B at ¶ 2-5.

Plaintiff has not brought any claims against Movants or the other non-defendant users. In fact, one

Movant, “Devilnthedeepblusea,” is named in the subpoena but is not even named in the complaint. See


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Exhibit A at ¶ 24; Exhibit B at ¶ 2. Plaintiff’s only allegation regarding Movants is that the defendant

sent what Plaintiff terms “inside information” to Movants. See Exhibit A at ¶ 24. In its complaint,

though, Plaintiff does not indicate why it believes that Defendant sent Movants information or why that

information might be legally protected, whether movants read, used, or distributed that information, or

any other allegation of wrongdoing. Id.

The breadth of information requested by the Plaintiff along with the fact that Movants are

suspect merely for being an audience on the Yahoo! message board indicate that Plaintiff’s subpoena is

really an attempt by Primus to use the threat of discovery to silence the heretofore vibrant on-line

discussion of Plaintiff’s business held in the Yahoo! forum. Based only on the skeletal allegation of a

belief that Defendant may have communicated with the Movants, Primus seeks to violate Movants’ First

Amendment right to speak anonymously. Movants have done nothing more than participate in a public

forum. Through this Motion to Quash, Movants seek to vindicate the proposition that “[p]eople who

have committed no wrong should be able to participate online without fear that someone who wishes to

harass or embarrass them can file a frivolous lawsuit and thereby gain the power of the court’s order to

discovery their identities.” Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 578 (N.D. Cal.

1999).

Whatever the merits of the Virginia case may be, Primus cannot show that their need to unmask

third-party Movants outweighs Movants’ First Amendment rights. Primus’ attempt to take advantage

of this Court’s discovery process to intimidate Movants into silence infringes on Movant’s right to

engage in anonymous speech, which is protected under the First Amendment of the United States

Constitution. Although Movants’ First Amendment rights must be balanced against Plaintiff’s need for


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discovery in the underlying litigation, Plaintiff never establishes why revealing Movants’ identities is the

only way for Plaintiff to proceed. Plaintiff’s failure to voice a clear need for Movants’ identities proves

that Plaintiff’s sole basis for subpoenaing Movants is their participation in the Yahoo! message board.

Because Primus has no legal cause of action against Movants nor any reason for including

“Devilnthedeepblusea” in the subpoena, Plaintiff has no viable argument as to why it needs Movants’

information to pursue its lawsuit against Defendant. Therefore, Movants’ First Amendment rights

prevail. Accordingly, this Court should quash the subpoena.

II. STATEMENT OF FACTS

A. YAHOO! MESSAGE BOARDS

Movants, under the names “Richb01803,” “Netpuppy666,” and “Devilnthedeepblusea”

participated in a Yahoo! message board dedicated to issues concerning Plaintiff Primus

Telecommunications Group. A New Jersey court accurately summarized Yahoo!’s message board

service in Dendrite International, Inc. v. John Doe No. 3, 342 N.J.Super. 134 (App.Div.2001)

(denying corporation’s request to disclose anonymous posters’ identities because corporation could not

show adequate harm). The court stated, “Yahoo! is an ISP that, among other things, provides a service

where users may post comments on bulletin and message boards related to the financial matters of

particular companies. Yahoo! maintains a message board for every publicly-traded company and

permits anyone to post messages on it.” Id. at 143. As the court noted, “Generally, users of the bulletin

boards post messages anonymously under pseudonyms. . . . Yahoo! guarantees to a certain extent that

information about the identity of their individual subscribers will be kept confidential.” Ibid. At present,


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there are nearly 29,000 messages on the Yahoo! message board dedicated to Primus. Dec’l. of

Granick at ¶ 5.

As the Supreme Court noted in Reno v. ACLU, 521 U.S. 844, 870 (1997), “[f]rom the

publishers point of view, [the Internet] constitutes a vast platform from which to address and hear from

a worldwide audience . . . Through the use of web pages, . . . [any] individual can become a

pamphleteer.” To that end, Yahoo! message boards are vibrant public forums fully within the scope of

First Amendment protection. Anyone with access to the Internet can sign on to Yahoo!, free of charge,

and read or post messages about any of the companies listed, thereby communicating with people

around the world with similar interests. Likewise, any company that disagrees with a posting on a

Yahoo! message board is equally free to post a rebuttal in the same forum. Yahoo! states at the bottom

of every page of the Primus message board that the board is a forum that “is not connected in any way

with the company . . . . [M]essages are only the opinion of the poster.” See Yahoo Message Board

Disclaimer, 1/30/2003, attached as Exhibit D. Thus, any person who reads or posts messages on this

board knows that the opinions on the board are not verified and are personal in nature.

An important feature of Internet message boards is that corporations and individuals can reply

immediately to criticisms and other opinions on a message board with their own facts or opinions in an

effort to persuade readers of the validity of their own position. On a message board the responses have

the same prominence as the original message. Unlike a newspaper, which cannot be required to print a

response to its criticisms, Miami Herald Publ’g. Co. v. Tornillo, 418 U.S. 241 (1974), a message board

is an ideal forum for airing the full gamut of viewpoints on a specific topic. Because many people

regularly revisit the same message boards, the response will be seen by essentially the same audience as


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the original criticism. In this way, the message board system is a truer marketplace of ideas and forum

for disagreements, deserving as much First Amendment protection as a newspaper. Reno v. ACLU,

521 U.S. 844, 870 (1997).

B. THE YAHOO! SUBPOENA / PROCEDURAL BACKGROUND

On December 20, 2002, Plaintiff filed suit in the U.S. District Court for the Eastern District of

Virginia, Alexandria Division, against defendant “John Doe” alleging insider trading, attempt to form a

conspiracy to defame the company, and intentional interference with Primus' business expectancy. See

Exhibit A. Defendant is alleged to use the monikers “wavedavecollin,” “wavrdave,” “ticermate,”

“telecrap,” and “phonecallsarecheap” (collectively “Defendant”). See Exhibit A at ¶ 14. Movants are

not the Defendant, and Plaintiff does not allege that Movants in any way aided Defendant in tortious,

defamatory, or otherwise actionable conduct. The complaint lists eleven pseudonyms of persons whose

messages have appeared on the Yahoo! message board devoted to Primus, including “richb01803” and

“netpuppy666.” See Exhibit A at ¶ 24. As to these users, Plaintiff’s complaint states only that “upon

information and belief [Defendant] has shared inside information that he has obtained with other

individuals who post on the Yahoo! Primus message board.” Exhibit A at ¶ 24. In its bare-bones

complaint, Plaintiff does not identify, quote, or even refer to any message or evidence as to support this

claim. Plaintiff also does not identify even generally what “inside” information that Defendant had that he

gave to Movants. Furthermore, although Plaintiff alleges “on information and belief” that Movants were


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given inside information, Plaintiff never alleges that Movants actively sought this information from the

defendant or took any action other then be members of the Yahoo! message board community.

Without seeking court authorization, and based on this bare-bones complaint, on December 31,

2002, Plaintiff issued a subpoena to Yahoo! from the U.S. District Court for Northern California, San

Francisco Division, requesting information revealing the identity of--among others--“Richb01803,”

“Netpuppy666,” and, although he was not listed in Plaintiff’s original complaint, “Devilnthedeepblusea.”

See Exhibit A at ¶ 24; Exhibit B at ¶ 5. Movants received notice of the subpoenas from Yahoo! on

January 14, 2003 indicating that the information requested would be disclosed 15 days later. On

January 23, 2003, undersigned counsel was retained to assume representation of Movants in this action.

On January 24, 2003, undersigned counsel telephoned Plaintiff’s counsel, Mr. Les Machado and Mrs.

Darcy Pertcheck, to request an extension of time for compliance so that a motion to quash could be

filed. On January 28, 2003, Plaintiff’s counsel refused to grant an extension. See Dec’l of Granick ¶

11. Movants now come before this Court seeking to quash the subpoena to Yahoo! because its

enforcement would violate their rights under the First Amendment of the United States Constitution.

III. ARGUMENT

A. MOVANTS HAVE A FIRST AMENDMENT RIGHT TO SPEAK ANONYMOUSLY ON-LINE

The Supreme Court has found a First Amendment right to speak anonymously. In Buckley v. Am.

Constitutional Law Found., 525 U.S. 182, 199 (1999) and McIntyre v. Ohio Elections Comm., 514

U.S. 334 (1995), the United States Supreme Court recognized the important role of anonymous and

pseudonymous writings throughout history –from the literature and commentary of Twain to the political


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advocacy of the Federalist Papers. The Court described the choice to write anonymously in McIntyre,

stating, “[t]he decision in favor of anonymity may be motivated by fear of economic or official

retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one's

privacy as possible.” 514 U.S. at 341-42. The Court further stated that “the interest in having

anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in

requiring disclosure as a condition of entry. Accordingly, an author's decision to remain anonymous, like

other decisions concerning omissions or additions to the content of a publication, is an aspect of the

freedom of speech protected by the First Amendment.” Id. at 342.

Because the Internet is a democratic institution in the fullest sense, serving as a modern

Speakers' Corner, the Supreme Court has already held that the right to speak anonymously extends into

cyberspace. As the Supreme Court opined, the Internet “constitutes a vast platform from which to

address and hear from a worldwide audience of millions . . . any person with a phone line can become a

town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web

pages . . . the same individual can become a pamphleteer." Reno v. ACLU, 521 U.S. 844, 870 (1997).

For this reason, the Court continued, Internet speech is fully protected under the First Amendment,

Reno v. ACLU, 521 U.S. 844 (1997), as is the right to communicate anonymously over the Internet.

See, e.g., ACLU v. Johnson, 4 F.Supp.2d 1029, 1033 (D. N.M. 1998), aff'd, 194 F.3d 1149 (10th

Cir. 1999) (upholding preliminary injunction against New Mexico statute prohibiting dissemination of

material harmful to minors on the Internet); ACLU v. Miller, 977 F.Supp.1228, 1230 (N.D. Ga. 1997)

(granting preliminary injunction where parties likely to prove that Georgia statute imposed

unconstitutional restrictions on their right to communicate anonymously over the Internet).


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B. MOVANTS RIGHT TO REMAIN ANONYMOUS DESERVES THE HIGHEST

DEFERENCE BECAUSE MOVANTS ARE NOT PARTY TO THE SUIT AND MOVANTS HAVE NOT BEEN ACCUSED OF WRONGDOING.

From both a Constitutional and purely policy perspective, anonymous communication is

especially important on the Internet. The free exchange of ideas on the Internet is driven in large part by

the ability of Internet users to communicate anonymously. If Internet users could be stripped of that

anonymity by a civil subpoena enforced under the liberal rules of civil discovery, this would have a

significant chilling effect on Internet communications and thus on basic First Amendment rights. Doe v.

2TheMart.com Inc., 140 F.Supp.2d 1088, 1093 (W.D. Wash. 2001).

If this Court enforces the subpoena to obtain Movants’ identities, it would terminate once and

for all their right to speak anonymously. Such a permanent encroachment of First Amendment rights

should only be done upon a showing of compelling need. NAACP v. Alabama, 357 U.S. 449, 461

(1958). A court order, even when issued at the behest of a private party, constitutes state action and

hence is subject to Constitutional limitations, including the First Amendment. New York Times Co. v.

Sullivan, 364 U.S. 254, 265 (1964); Shelley v. Kraemer, 334 U.S. 1 (1948). The Supreme Court has

held that a court order to compel production of individuals' identities in a situation that would threaten

the exercise of fundamental rights “is subject to the closest scrutiny.” NAACP v. Alabama, 357 U.S.

449, 461 (1958); Bates, 361 U.S. 516, 524 (1960). The Court has acknowledged that abridgement of

the rights to speech, “even though unintended, may inevitably follow from varied forms of governmental

action,” such as compelling the production of names. NAACP, 357 U.S. at 461. The Court noted that

rights may be curtailed by means of private retribution following such court-ordered disclosures. Id. at


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462-463; Bates, 361 U.S. at 524. Due process requires the showing of a “subordinating interest which

is compelling” where, as here, compelled disclosure threatens a significant impairment of fundamental

rights. Bates, 361 U.S. at 524; NAACP, 357 U.S. at 463.

Furthermore, Movants’ First Amendment rights deserve the highest deference because

Plaintiff’s civil subpoena seeks the identities of anonymous Internet users who are not a party to the

underlying litigation. As this Court has stated, “[p]eople who have committed no wrong should be able

to participate online without fear that someone who wishes to harass or embarrass them can file a

frivolous lawsuit and thereby gain the power of the court’s order to discover their identities.” Columbia

Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 578 (N.D. Ca. 1999). Particularly where the individuals

being subpoenaed are not parties to the lawsuit nor have they been accused of wrongdoing, the

subpoena should be enforced only after the highest judicial scrutiny. Any lower standard of review

fundamentally jeopardizes “the rich, diverse, and far ranging exchange of ideas” that “internet anonymity

facilitates.” Doe v. 2TheMart.com Inc., 140 F. Supp. 2d 1088, 1092 (W.D. Wa. 2001).

To decide this question of free speech and privacy rights, this Court should employ the

balancing test utilized by the U.S. District Court for the Western District of Washington, in Doe v.

2TheMart.com, 140 F. Supp. 2d 1088, 1095 (2001). 2TheMart is the appropriate balancing test

because, as in the instant matter, 2TheMart involved a subpoena to an ISP demanding the identities of

anonymous users who were not party to the suit. In 2TheMart, the defendant sought to obtain the

identities of 23 speakers who anonymously participated on Internet Message boards. Although

defendant sought this information to aid his assertion of an affirmation defense in an underlying securities

litigation, the 2TheMart court quashed Defendant’s subpoena on the grounds that “non-party disclosure


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is only appropriate in the exceptional case where the compelling need for the discovery sought

outweighs the First Amendment rights of the anonymous speaker.” 140 F.Supp.2d 1088, 1095 (2001).

Under the 2TheMart standard, the court must consider four factors in evaluating a civil

subpoena that seeks the identity of an anonymous Internet user who is not a party to the underlying

litigation. These factors are: (1) the subpoena was issued in good faith and not for any improper

purpose, (2) the information sought relates to a core claim or defense, (3) the identifying information is

directly and materially relevant to that claim or defense, and (4) information sufficient to establish or to

disprove that claim or defense is unavailable from any other source. Id. at 1095.

C. THIS COURT SHOULD QUASH PLAINTIFF’S SUBPOENA BECAUSE PLAINTIFF FAILS THE 2THEMART TEST AND OFFERS NO COMPELLING REASON FOR THIS COURT TO IGNORE MOVANTS’ FIRST AMENDMENT RIGHTS.

Plaintiff does not meet the burden required to issue this subpoena under the four-factor analysis

set out in 2TheMart. Consequently, this Court should respect Movants’ First Amendment rights and

quash Plaintiff’s subpoena.

The over-broadness of Plaintiff’s subpoena causes Plaintiff to fail the “good faith” element of the

2TheMart test. The 2TheMart court held that “while not demonstrating bad faith per se” blanket

requests for information of large groups of non-party speakers constitutes such an “apparent disregard

for the privacy and First Amendment rights of the on-line users . . . [to] weigh[] against . . . balancing

the interest here.” 140 F.Supp.2d at 1096. As issued, the Plaintiff’s subpoena seeking identity

information is equally vague and over-broad. Plaintiff seeks the identities behind twelve usernames in


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its subpoena. Plaintiff has failed to offer any reason why it wants the identities of each of these

individuals. Moreover, one of the users, Movant “Devilnthedeepblusea” is not alleged to have done

anything whatsoever. Plaintiff asks for all Yahoo! records concerning the usernames listed its subpoena.

These records could be anything up to and including personal e-mail by these users that have nothing to

do with the ongoing litigation. As issued, then, the Plaintiff’s subpoena fails the good-faith standard.

The Plaintiff also fails to establish that the information sought relates to a core claim or defense.

Under the 2TheMart standard, “only when the identifying is needed to advance core claims or defenses

can it be sufficiently material to compromise First Amendment rights.” Id. at 1096. In 2TheMart, the

defendant sought the identifying information to pursue one of several defenses that were available to him.

Because the information was needed for one of many possible defenses, the court held that the

identifying information was not related to a core claim and therefore was not discoverable. In the instant

matter, the Plaintiff has four claims against the defendant and he can proceed with his claims without

ever knowing who the Movants are. Because the Plaintiff’s core claims are not related to Movants’

identities, Plaintiff fails the second prong of the 2TheMart test.

Plaintiff likewise fails the third prong of the 2theMart test, whether the information requested is

directly and materially relevant to the core claim or defense. As in 2TheMart, the Movants are not

party to the suit or needed for a cross-claim or third-party claim. According to the 2TheMart court,

because the Movants “have not been named as defendants as to any claim, cross-claim, or third-party

claim . . . their identity is not needed to allow the litigation to proceed.” 140 F.Supp.2d at 1096. Any

suggestion that Movants may have been sent “inside information” does not allow Plaintiff to overcome

their First Amendment relevancy claim absent a more specified showing. As the 2TheMart Court


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stated, “[First Amendment rights] cannot be nullified by an unsupported allegation of wrongdoing raised

by the party seeking the information.” Id. at 1097. An unsupported allegation is more than we have

here. The complete absence of any showing that Movants requested epitomizes the phrase

“unsupported allegation” and fails the core relation prong of 2TheMart.

Finally, there is sufficient information elsewhere to establish Plaintiff’s claim. In 2TheMart, the

Court held that, because the Defendant could use chat room records to prove what various parties

whose identities he sought had said, possessing the identities of the speakers was superfluous and the

speakers right to remain anonymous trumped defendant’s interest in discovery. Here, the Plaintiff has

available the message board records as well as any of the Defendants records Plaintiff may obtain

through discovery. Plaintiff can proceed by discovering the Defendant’s identity and subpoenaing his

computer records. Information gained that way is more than sufficient for Plaintiff to pursue its claim

against Defendant. Because the truly important information here is what the Defendant himself said and

did and because this information is available without unmasking the Movants, Plaintiff fails the 2TheMart

test. This Court should respect Movants’ First Amendment rights and quash he subpoena.

IV. CONCLUSION

Based upon the foregoing, Movants respectfully request that this motion to quash the subpoena

be granted.


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Dated: January 31, 2003 Respectfully submitted,

By: __________________________________

Jennifer Stisa Granick, Esq. California Bar No. 164823 ________________________________ Melvin Priester Law Student on Brief (State Bar Certification Pending) STANFORD LAW SCHOOL

CENTER FOR INTERNET AND SOCIETY 559 Nathan Abbott Way Stanford, CA 94305

(650) 724-0014 Attorneys for Movants aka “Richb01803,” “Netpuppy666,” and “Devilnthedeepblusea”

DECLARATION OF JENNIFER STISA GRANICK

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NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION PRIMUS TELECOMMUNICATIONS GROUP, INC., Plaintiff, v. JOHN DOES 1 THROUGH 15,

Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. __________________


DECLARATION OF JENNIFER STISA GRANICK IN SUPPORT OF MOTION TO QUASH SUBPOENA TO YAHOO!, INC.


Date: March 21, 2003 Time: 9:00 am Dept. TBD

Jennifer Stisa Granick, Esq., CA Bar No. 168423 STANFORD LAW SCHOOL CENTER FOR INTERNET AND SOCIETY 559 Nathan Abbott Way Stanford, California 94305-8610 Telephone: (650) 724-0014 Facsimile: (650) 723-4426 Attorneys for: MOVANTS AKA “RICHB01803,” “NETPUPPY666,” AND “DEVILNTHEDEEPBLUSEA” ON YAHOO!


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I, JENNIFER STISA GRANICK, declare under the penalty of perjury that the foregoing is

true and correct:

1. I am an attorney licensed to practice in the State of California and I am the attorney of record for

the Movants in the above-entitled case.

2. Primus filed a complaint against an anonymous defendant in federal court in the Eastern District of

Virginia. A copy of the complaint is attached hereto as Exhibit A. Movants are not named as

defendants. The only allegation against Movants “richb01803” and “netpuppy666” is that the

Defendant may have sent them “inside information.” There are no allegations against

“devilnthedeepblusea.”

3. Primus then issued a subpoena in the U.S. District Court for the Northern District of California to

Yahoo! for personally identifying information about Movants. Primus did not obtain judicial

authorization to issue the subpoena. The subpoena is attached as Exhibit B.

4. I am personally familiar with the operation of Yahoo! message boards. I know that corporations

and individuals may reply immediately and without cost to criticisms and other opinions on a

message board with their own facts or opinions. The responses have the same prominence as the

original message. Many people regularly revisit the same message boards. Yahoo! provides the

option of reporting abusive messages.

5. Many members of the public have visited the Primus Telecommunications Group, Inc. message

board and participated in the ongoing discussion. I visited the message board, located


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http://messages.yahoo.com/?action=q&board=prtl on January 30, 2002 and saw that there are

currently 29,191 messages, containing an enormous variety of topics from many different posters.

6. Message number 1 on the Primus message board is from Yahoo!, and states:

This is the Yahoo! Message Board about PRTL, where you can discuss the future prospects of the company and share information about it with others. This board is not connected in any way with the company, and any messages are solely the opinion and responsibility of the poster.

This message can be accessed at web address:

http://messages.yahoo.com/bbs?.mm=FN&action=m&board=7083621&tid=prtl&sid=7083621&

mid=1 and was visited by me on January 30, 2003. A true copy is attached as Exhibit C.

7. Every page of message listings displays the following notice:

Reminder: This board is not connected with the company. These messages are only the opinion of the poster, are no substitute for your own research, and should not be relied upon for trading or any other purpose. … For more information regarding investments and the Internet, please visit the SEC Web site.

This notice can be viewed at:

http://messages.yahoo.com/?action=q&board=prtl and was visited by me on January 30, 2003.

A true and correct copy is attached as Exhibit D.

8. Yahoo! is a Delaware corporation with its principal place of business in Santa Clara, California.


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9. Movants used an Internet service located in the United States (Yahoo!) to express their

opinions anonymously about Primus Telecommunications Group, Inc., a publicly traded

Delaware corporation with its principal place of business in McLean, Virginia.

10. Upon information and belief, no suit by Primus is currently pending against any of the Movants.

11. I supervise Stanford’s Cyberlaw Clinic. Law student Melvin Priester spoke by telephone to

Primus attorney Les Machado on January 24, 2002 to inform Primus that Movant would file the

instant Motion to Quash Subpoena and to request an extension to file said Motion. Counsel for

Primus refused to grant an extension.

I declare, under the penalty of perjury under the laws of the State of California, that the

foregoing is true and correct. Executed this 31st day of January 2003 at Stanford, California.

_______________________________________ Jennifer Stisa Granick

Attorney for Movants John Doe (AKA: RICHB01803, NETPUPPY666, DEVILNTHEDEEPBLUSEA)

[PROPOSED] ORDER

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PRIMUS TELECOMMUNICATIONS GROUP, INC., Plaintiff, v. JOHN DOES 1 THROUGH 15, Movants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. _________________ (MISC) E.D. Virginia Case No. 02-1842

[PROPOSED] ORDER


GOOD CAUSE HAVING BEEN SHOWN, IT IS HEREBY ORDERED THAT Movants’ Motion to Quash the Subpoena on Yahoo! Inc. is hereby GRANTED. IT IS SO ORDERED. Dated: _______________________ ____________________________________ United States District Court Judge

Jennifer Stisa Granick, Esq., CA Bar No. 168423 STANFORD LAW SCHOOL CENTER FOR INTERNET AND SOCIETY 559 Nathan Abbott Way Stanford, California 94305 Telephone: (650) 724-0014 Facsimile: (650) 723-4426 Attorney for Movants: JOHN DOES (aka: NETPUPPY666; RICHB01803; AND DEVILNTHEDEEPBLUSEA)

PROOF OF SERVICE

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PRIMUS TELECOMMUNICATIONS GROUP, INC., Plaintiff, v. JOHN DOES 1 THROUGH 15, Movants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. _________________ (MISC)

U.S. District Court (E.D. VA) Case No. 02-1842

PROOF OF SERVICE



Jennifer Stisa Granick, Esq., CA Bar No. 168423 STANFORD LAW SCHOOL CENTER FOR INTERNET AND SOCIETY 559 Nathan Abbott Way Stanford, California 94305 Telephone: (650) 724-0014 Facsimile: (650) 723-4426 Attorney for Movants: JOHN DOES (aka: NETPUPPY666; RICHB01803; AND DEVILNTHEDEEPBLUSEA)

PROOF OF SERVICE 1

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PROOF OF SERVICE

I, Joanne Newman, the undersigned, do hereby declare:

I am over eighteen years of age and not a party to the above action. My business address is

559 Nathan Abbott Way, Stanford, CA 94305-8610.

On January 31, 2003, I personally served a true copy of:

NOTICE OF MOTION AND MOTION TO QUASH SUBPOENA TO YAHOO! INC.;

MOTION TO QUASH SUBPOENA TO YAHOO! INC.;

DECLARATION OF JENNIFER GRANICK IN SUPPORT THEREOF; and

PROPOSED ORDER

on the interested parties named below, addressed as follows: Darcy Pertcheck Nixon Peabody LLP Two Embarcadero Center San Francisco, CA 94111 Facsimile: (415) 984-8300 Louis E. Dolan Nixon Peabody LLP 401 Ninth Street, N.W., Suite 900 Washington, D.C. 20004-2128 Facsimile: (202) 585-8080 Tracy Jones, Compliance Paralegal Yahoo! Inc. 701 First Avenue Sunnyvale, CA 94089 Facsimile: (408) 349-7941

PROOF OF SERVICE 2

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(x) By U.S. Mail: I placed a true copy in a sealed envelope to the parties stated above and,

pursuant to the usual business practice of the University for collection and processing of mail, deposited

on the same day in a collection box regularly maintained by U.S. Postal Service.

(X) By Facsimile: I caused said documents to be transmitted to the above-named parties by a fax

machine. I declare under penalty of perjury that the foregoing is true and correct. Executed on January 31, 2003 at Palo Alto, California.

________________________________

Joanne Newman

PROOF OF SERVICE 1

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jennifer stisa granick, esq., ca bar no. 168423 stanford...

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