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					     Jennifer Stisa Granick, Esq., CA Bar No. 168423
 1   STANFORD LAW SCOOL
 2
     CENTER FOR INTERNET AND SOCIETY
     559 Nathan Abbott Way
 3   Stanford, California 94305-8610
 4
     Telephone:      (650) 724-0014
     Facsimile:      (650) 723-4426
 5
     Attorneys for:
 6   SEVEN (7) ANONYMOUS POSTERS ON YAHOO!,
     AKA: JOHN DOES AND/OR MOVANTS.
 7

 8

                              UNITED STATES DISTRICT COURT
 9

10                    FOR THE NORTHERN DISTRICT OF CALIFORNIA
11
                                  SAN FRANCISCO DIVISION
12

     SEEBEYOND TECHNOLOGY                )
13
     CORPORATION,                        )           Case No. _______________
14                                       )
                Plaintiff,               )           U.S. District Court (D. Utah)
15
                                         )           Case No. 2:02-CV-441C
16      v.                               )
                                         )
17                                                   NOTICE OF MOTION
     JOHN DOES 1 THROUGH 30,             )
18                                       )
                  Defendants.            )
19
                                         )
20                                       )           ORAL ARGUMENT REQUESTED
                                         )
21
                                         )           Date:    April 25, 2003 (proposed)
22                                       )           Time:    9:00 a.m.
                                         )
23                                                   Dept.:   Hon. Maxine Chesney
     ___________________________________ )
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            PLEASE TAKE NOTICE that on April 25, 2003 or as soon thereafter as can be
26

27   heard, Movants (seven anonymous alleged Posters on Yahoo!, aka John Does), through their
28

29   NOTICE OF MOTION

                                                 1
 1   undersigned counsel, will move the Court pursuant to Federal Rule of Civil Procedure
 2
     45(c)(3)(A)(iii) and Local Rule 7.2, to quash a subpoena issued by SeeBeyond Technology
 3

 4
     Corporation to third party Yahoo! Inc. Fed. R. Civ. P. 45(c)(3)(A)(iii) provides that “[o]n

 5   timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if
 6
     it requires disclosure of privileged or other protected matter and no exception or waiver
 7

 8
     applies."

 9           Good cause exists to quash the subpoena because Plaintiff cannot make a showing that
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     their interest in obtaining the true identity of Movants on Yahoo!, outweighs Movants’ First
11

12
     Amendment right to speak anonymously on the Internet. Movants, the seven individuals who

13   received notice from Yahoo! that it had been subpoenaed for their personal identifying
14
     information, seek leave of the Court to appear anonymously through counsel, to avoid
15

16
     disclosure of Movants’ true identities and to protect their First Amendment rights.

17           This motion is based upon this Notice of Motion and Motion to Quash Subpoena, the
18
     Declaration of counsel Jennifer Granick, on all papers and records on file herein, and on
19

20
     evidence and argument to be presented at the time of hearing.

21   Dated: February 25, 2003                        Respectfully submitted,
22

23                                           By:      __________________________________
24
                                                     Jennifer Stisa Granick, Esq.
                                                     California Bar No. 164823
25                                                   STANFORD LAW SCHOOL
26
                                                     CENTER FOR INTERNET & SOCIETY
                                                     559 Nathan Abbott Way
27                                                   Stanford, CA 94305
28

29   NOTICE OF MOTION

                                                     2
 1                      Tel.: (650) 724-0014
 2
                        Attorneys for Movants aka “John Does”
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29   NOTICE OF MOTION

                        3
 1   Jennifer Stisa Granick, Esq., CA Bar No. 168423
 2
     STANFORD LAW SCHOOL
     CENTER FOR INTERNET AND SOCIETY
 3   559 Nathan Abbott Way
 4
     Stanford, California 94305-8610
     Telephone:      (650) 724-0014
 5   Facsimile:      (650) 723-4426
 6   Attorneys for
     SEVEN (7) ANONYMOUS POSTERS ON YAHOO!,
 7   AKA: JOHN DOES AND/OR MOVANTS.
 8

 9
                                    UNITED STATES DISTRICT COURT

10                             FOR THE NORTHERN DISTRICT OF CALIFORNIA
11
                                        SAN FRANCISCO DIVISION
12

13
     SEEBEYOND TECHNOLOGY                              )   Case No. _______________
14   CORPORATION,                                      )
15
                                                       )   U.S. District Court (D. Utah)
                  Plaintiff,                           )   Case No. 2:02-CV-441C
16                                                     )
17
        v.                                             )   MOTION TO QUASH SUBPOENA
                                                       )   TO YAHOO! INC.
18   JOHN DOES 1 THROUGH 30,                           )
19
                                                       )   ORAL ARGUMENT REQUESTED
                    Defendants.                        )
20                                                     )
                                                           Date:     April 25, 2003 (proposed)
                                                       )
21                                                         Time:     9:00 am
                                                       )
                                                           Dept.:    Hon. Maxine Chesney
22                                                     )
23
                                                       )

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29   MOTION TO QUASH SUBPOENA
 1
                                          I. INTRODUCTION
 2

 3            SeeBeyond has filed a lawsuit hoping to find someone it might be able to sue for
 4
     something. Accordingly, SeeBeyond has pled several unsubstantiated causes of action against
 5

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     anonymous defendants in a suit filed in the District of Utah (Case No.2:02-CV-441C).

 7   Movants’ usernames are not mentioned in the Complaint, a copy of which is attached hereto as
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     Exhibit A. Now, even without an established connection between its claim and the anonymous
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     Internet speakers it pursues, SeeBeyond has subpoenaed Yahoo! for Movants’ private user

11   information. Compelling this disclosure violates Does’ First Amendment right to speak
12
     anonymously. Thus, these Does (“Movants”) respectfully request that this Court quash the
13

14
     subpoena.

15            As established in McIntyre v. Ohio Elections Comm., 514 U.S. 334 (1995), there is a
16
     First Amendment right to speak anonymously. SeeBeyond has made no showing to justify
17

18
     destroying this right of these Yahoo! users and instead has relied on a conclusory pleading as

19   the basis for its subpoena. SeeBeyond’s pleading does not establish any cause of action against
20
     these Does. In fact, the Complaint itself identifies neither usernames nor specific actions
21

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     allegedly committed by the usernames, leaving it unclear whether these Does are accused of

23   anything at all.
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              Without sufficient allegations or evidence to establish a prima facie case that these Does
25

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     abridged SeeBeyond’s rights in any way, the First Amendment demands that Does’ right to

27   speak anonymously be preserved. “People who have committed no wrong should be able to
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     participate online without fear that someone who wishes to harass or embarrass them can file a
29




     MOTION TO QUASH SUBPOENA                         1
 1   frivolous lawsuit and thereby gain the power of the court’s order to discover their identities.”
 2
     Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 578 (N.D. Cal. 1999).
 3

 4

 5                                   II. STATEMENT OF FACTS
 6
             A.      THE COMPLAINT
 7
             On May 3, 2002, Plaintiff SeeBeyond Technology Corporation, a California
 8

 9   Corporation, filed a Complaint in the United States District Court for the District of Utah against

10
     Does 1 through 30. Based on information and belief, the Complaint alleged four causes of
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     action: violation of 18 U.S.C. § 2701; violation of 18 U.S.C. § 1030 (without specifying the
12

13   subsection violated); libel and slander; and tortious interference. Exhibit A, Complaint at ¶¶ 7-

14
     22. In the Complaint, Plaintiff alleged that defamatory messages were posted “on various
15
     computers, servers, and Internet Bulletin Boards about SeeBeyond.” Id. ¶ 5. Additionally,
16

17   Plaintiff alleged unauthorized access to protected computer systems. No details of the alleged

18
     acts were given.
19
             Movants are Yahoo! users whose information was subpoenaed in connection with that
20

21   lawsuit. None of the Movants’ Yahoo! usernames are referenced in the Complaint. The

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     Complaint itself does not allege that Plaintiff suffered any harm because of subpoenaed
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     Movants. No information regarding specific acts or statements is attached to the Complaint,
24

25   nor is there any evidence supporting its vague and conclusory allegations.

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     MOTION TO QUASH SUBPOENA                         2
 1           B.      THE YAHOO! SUBPOENA
 2

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             On November 8, 2002, Plaintiff filed a Motion for Limited Discovery in the United

 4   States District Court for the District of Utah. The motion, relying on the information outlined
 5
     in the Complaint, requested “limited, accelerated discovery for the purpose of determining
 6

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     the identities of defendants Does 1 through 30.” See Exhibit B, Discovery Motion at 1-2.

 8   The District Court granted the request, authorizing limited discovery, through an order filed
 9
     the same day. See Exhibit C, Discovery Order at 1.
10

11           On January 14, 2003, Plaintiff issued a subpoena out of California to Yahoo! Inc. with
12
     a compliance date of February 26, 2003. The subpoena, with messages attached, requested
13
     “all documents relating in any way to the person or persons who posted the messages.” See
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15   Exhibit D, Subpoena at 4. Additionally, the subpoena requests information regarding requests
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     for a new password and attempts to access a specific Yahoo! account or accounts identified in
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     the attachment to the subpoena. The subpoena does not explain the relevance of the requested
18

19   information or users to the claims made in the lawsuit, nor does it limit discovery to Movants’
20
     identities as permitted by court order. See Exhibit C, Discovery Order at 1.
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             Yahoo! received the subpoena and gave notice to the Yahoo! users accounts on
22

23   January 17, 2003. Movants, some of the John Doe users, are hereby filing this Motion to
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     Quash the subpoena.
25

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             C.      YAHOO! MESSAGE BOARDS
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             Presumably, Plaintiff seeks information about the John Does because they posted
28

29   messages on a Yahoo! Message Board for SeeBeyond Technology Corporation. A New


     MOTION TO QUASH SUBPOENA                        3
 1   Jersey court accurately summarized Yahoo!’s message board service in Dendrite International,
 2
     Inc. v. John Doe No. 3, 342 N.J. Super 134, 775 A.2d 756 (App.Div. 2001) (attached as
 3

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     Exhibit F), stating, “Yahoo! is an ISP that, among other things, provides a service where users

 5   may post comments on bulletin and message boards related to the financial matters of particular
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     companies. Yahoo! maintains a message board for every publicly-traded company and permits
 7

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     anyone to post messages on it.” Id. at 761. As the court recognized, “Generally, users of the

 9   bulletin boards post messages anonymously under pseudonyms….Yahoo! guarantees to a
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     certain extent that information about the identity of their individual subscribers will be kept
11

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     confidential.” Id. at 762.

13           Members of the public use the Yahoo! message board dedicated to SeeBeyond as a
14
     source of information, opinion, and gossip about SeeBeyond and its stock. There are currently
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     over 10,000 messages which have been posted to the message board even though it was only

17   created on May 5, 2000. See Exhibit E, Yahoo! Message Boards: SBYN (last visited
18
     2/19/03), Granick Decl. ¶ 6. These posts are spirited, complete with accusations and insults
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     that, in this atmosphere, is an accepted part of the community. Yahoo! provides the option of

21   reporting abuse messages, but gossip, speculation and colorful criticism are clearly common and
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     accepted on the board.
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             Corporations and individuals can reply immediately and without cost to criticisms and

25   other opinions on a message board with their own facts or opinions in an effort to persuade
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     readers of the validity of their own position, though it does not appear Plaintiff has taken
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     advantage of this opportunity. Any responses would have the same prominence as the original

29   message and be seen by essentially the same audience as the original criticism. Granick Decl. ¶


     MOTION TO QUASH SUBPOENA                          4
 1   5. In this way, the message board is a true marketplace of ideas and forum for disagreement,
 2
     deserving First Amendment protection.
 3

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                                           III. DISCUSSION
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             Plaintiff seeks to enforce a subpoena for information that would destroy the Movants’

 7   right to speak anonymously. In this case, Plaintiff can demonstrate no compelling interest why
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     that First Amendment right should be breached.
 9

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             A.      DOE MOVANTS HAVE A FIRST AMENDMENT RIGHT TO
11                   SPEAK ANONYMOUSLY
12
             The Supreme Court has held that the right to speak anonymously is protected under the
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     First Amendment and has recognized the important historical role of anonymous writings,
14

15   including the literature of Mark Twain and the advocacy of the Federalist Papers. Buckley v.

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     Am. Constitutional Law Found., 525 U.S. 182 (1999); McIntyre v. Ohio Elections Comm.,
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     514 U.S. 334 (1995); Talley v. California, 362 U.S. 60 (1960). As the Court noted in Talley,
18

19   “[T]he Federalist Papers, written in favor of the adoption of our Constitution, were published

20
     under fictitious names. It is plain that anonymity has sometimes been assumed for the most
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     constructive purposes.” 362 U.S. at 65. The Court expanded on this in McIntyre, stating,
22

23   “The decision in favor of anonymity may be motivated by fear of economic or official retaliation,

24
     by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy
25
     as possible.” 514 U.S. at 341-42. The Court went on to say, “[T]he interest in having
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27   anonymous works enter the marketplace of ideas unquestionably outweighs any public interest

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     in requiring disclosure as a condition of entry. Accordingly, an author’s decision to remain
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     MOTION TO QUASH SUBPOENA                        5
 1   anonymous, like other decisions concerning omissions or additions to the content of a
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     publication, is an aspect of the freedom of speech protected by the First Amendment.” Id. at
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     342.

 5           The Supreme Court also recognizes that the Internet is fully protected by the First
 6
     Amendment. Reno v. ACLU, 521 U.S. 844 (1997). In analyzing the Internet as a medium the
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     Court noted, “…[the Internet] constitutes a vast platform from which to address and hear from

 9   a worldwide audience of millions…Through the use of chat rooms, any person with a phone line
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     can become a town crier with a voice that resonates farther than it could from any soapbox.
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     Through the use of Web pages…the same individual can become a pamphleteer.” Id. at 870.

13   Consequently, the Court stated, “that our cases provide no basis for qualifying the level of First
14
     Amendment scrutiny that should be applied to this medium.” Id. at 870. As a component of
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     free speech, the right to speak anonymously over the Internet has also been upheld by several

17   courts. Columbia Ins. v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999); ACLU v.
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     Johnson, 4 F.Supp.2d 1029 (D.N.M. 1999), aff’d 194 F.3d 1149 (10th Cir. 1999); ACLU v.
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     Miller, 977 F.Supp. 1228 (N.D.Ga. 1997).

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             B.      PLAINTIFF MUST DEMONSTRATE A COMPELLING NEED

23           The Movants would lose their fundamental right to speak anonymously if this subpoena
24
     is enforced. Yet, Plaintiff has issued the subpoena with nothing more than a conclusory pleading
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     that fails to set forth legitimate claims against any of the Movants, much less provide factual

27   support for these claims. This Court should require the Plaintiff to demonstrate legitimate claims
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     MOTION TO QUASH SUBPOENA                         6
 1   against Movants so that it can balance Plaintiff’s need for the requested information with
 2
     Movants’ First Amendment right.
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             A court order to compel production of individuals’ identities “is subject to the closest

 5   scrutiny” when it impinges on fundamental rights. NAACP v. Alabama, 357 U.S. 449, 461
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     (1958); Bates v. City of Little Rock, 361 U.S. 516, 524 (1960). Furthermore, the abridgement
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     of the rights to speech and press, “even though unintended, may inevitably follow from varied

 9   forms of governmental action,” such as the production of names. NAACP, 357 U.S. at 461.
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     Due process requires the showing of a “subordinating interest which is compelling” where
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     disclosure threatens to significantly impair fundamental rights. Bates, 361 U.S. at 524;

13   NAACP, 357 U.S. at 463.
14
             Anonymity on the Internet is itself a fundamental right that must be protected absent a
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     “compelling” need. Bates, 361 U.S. at 524; NAACP, 357 U.S. at 463. “The free exchange of

17   ideas on the Internet is driven in large part by the ability of Internet users to communicate
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     anonymously. If Internet users could be stripped of that anonymity by a civil subpoena enforced
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     under the liberal rules of civil discovery, this would have a significant chilling effect on Internet

21   communications and thus on basic First Amendment rights.” Doe v. 2TheMart.com Inc., 140
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     F.Supp.2d 1088, 1093 (W.D. Wash. 2001). In holding that a corporation’s need was not
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     compelling enough to warrant disclosure when compared to the First Amendment right of an

25   anonymous poster, the court in 2TheMart.com stated, “discovery requests seeking to identify
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     anonymous Internet users must be subjected to careful scrutiny by the courts.” Id. at 1093.
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             Recent cases have required plaintiffs to demonstrate a compelling need for anonymous

29   Internet users’ private information. In Columbia Ins. v. Seescandy.com, 185 F.R.D. 573 (N.D.


     MOTION TO QUASH SUBPOENA                           7
 1   Cal. 1999), the plaintiffs sued several defendants based on registration of Internet domains that
 2
     used the plaintiff’s trademark. Summarizing the chilling effects of discovery, the court noted,
 3

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     “[p]eople who have committed no wrong should be able to participate online without fear that

 5   someone who wishes to harass or embarrass them can file a frivolous lawsuit and thereby gain
 6
     the power of the court’s order to discover their identity.” Id. at 578. The Seescandy.com
 7

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     court required the plaintiff to do four things before authorizing discovery against anonymous

 9   defendants: first, identify the individual defendants “with sufficient specificity” in order for the
10
     court to determine jurisdictional requirements are met; second, “identify all previous steps taken
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     to locate the elusive defendant” in order to determine that a good faith effort had been made;

13   third, demonstrate to the court that there are viable claims against the defendants, including the
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     ability to survive a motion to dismiss; and fourth, justify the need for the information requested,
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     including a identification of a limited number of people who might be served as well as how such

17   discovery will lead to identifying information about the defendant that would make service of
18
     process possible. Id. at 578-581.
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             Interpreting Seescandy.com in a case that involved anonymous speech on Yahoo!

21   bulletin boards, the court in Dendrite International, Inc. v. John Doe, No.3 342 N.J. Super 134,
22
     775 A.2d 756 (App.Div. 2001), focused on what the plaintiff must do to demonstrate that its
23

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     need for the information is strong enough to justify discovery. The Dendrite court interpreted

25   Seescandy.com as establishing “a flexible, non-technical, fact-sensitive mechanism for courts to
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     use as a means of ensuring that plaintiffs do not use discovery procedures to ascertain the
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     identities of unknown defendants in order to harass, intimidate or silence critics in the public

29   forum opportunities presented by the Internet.” Id. at 770. Rejecting the notion that plaintiffs


     MOTION TO QUASH SUBPOENA                           8
 1   need only be able to survive a motion to dismiss, the Dendrite court specifically focused on
 2
     probable cause as mentioned in the third-prong of the Seescandy.com test, concluding that “by
 3

 4
     equating this prong to the probable cause for warrants, ‘plaintiff must make some showing that

 5   an act giving rise to civil liability actually occurred and that the discovery is aimed at revealing
 6
     the specific identifying features of the person or entity who committed the act.’” Id. at 770
 7

 8
     (quoting Seescandy.com, 185 F.R.D. at 580) (emphasis of Dendrite court). Such a showing is

 9   required to demonstrate a “subordinating interest which is compelling” under Bates. 361 U.S.
10
     at 524.
11

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               C.      PLAINTIFF HAS NOT SHOWN A COMPELLING INTEREST
                       IN THIS CASE THAT WOULD WARRANT DESTROYING
13                     MOVANTS’ FIRST AMENDMENT RIGHT
14
               Plaintiff has only provided only a weak, confusing, conclusory pleading. Under Bates,
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     the court should require Plaintiff to demonstrate that the strength of its case is “a subordinating

17   interest compelling” enough justify abridging defendants First Amendment right. 361 U.S. at
18
     524. The pleading does not even set forth a prima facie case, much less a compelling one, that
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     any rights of the plaintiff have been violated by Movants or anyone else. Both proper

21   allegations and some evidence are required to show a compelling need. Neither one is
22
     presented by the Plaintiff.
23

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               First, Plaintiff has failed to identify defendants with specificity as required in

25   Seescandy.com. The Complaint refers to “Doe Defendants.” Exhibit A, Complaint, ¶ 3.
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     However, nowhere in the Complaint are any identifying characteristics of these defendants
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     presented. The Complaint does not identify usernames or explain how Movants are connected

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     MOTION TO QUASH SUBPOENA                             9
 1   to the allegations in the suit.1 Furthermore, Plaintiff alleges that “the author of the Messages is a
 2
     competitor of SeeBeyond,” making it clear through the use of the singular that there is one
 3

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     author and that that author is a competitor. Id. ¶ 5. Yet, Plaintiff has subpoenaed Yahoo! for

 5   multiple Does’ information, even though all Does cannot be the author and competitor referred
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     to in the Complaint. Plaintiff should not be allowed to take a scattershot approach in identifying
 7

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     Movants, especially when fundamental rights are at stake.

 9            Second, Plaintiff has not identified any efforts it has made to contact Movants, Plaintiff
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     could attempt to e-mail Movants, post messages on the Yahoo! message board, or contact
11

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     them through the other “various computers, servers, and Internet Bulletin Boards” mentioned in

13   the Complaint. Id. ¶ 5. Since Plaintiff believes the defendant is a competitor, it could attempt to
14
     contact that competitor directly for additional information about Movants, if relevant.
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             Third, Plaintiff must demonstrate it has a viable and compelling case. A conclusory

17   pleading is not sufficient. Plaintiff should set forth each specific actionable harm and the specific
18
     parties involved in a detailed fashion.
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             Plaintiff fails to properly allege defamation. To state a cause of action for libel and

21   slander (defamation), Plaintiff must allege what statements were made, allege what statements
22
     were false, state when and where they were published, and describe how they harmed the
23

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     plaintiff, explaining the nature of that harm. 5 Witkin, Summary 9th (1990) Torts, § 480, p.

25   564. Plaintiff alleges only that “Defendants have posted libelous, slanderous, and defamatory
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     1
             If, in fact, the Movants are not defendants and instead non-parties to the case, their First
28
     Amendment right should be analyzed under the test laid out in Doe v. 2TheMart.com Inc., 140 F.Supp.2d
     1088 (W.D. Wash. 2001).
29




     MOTION TO QUASH SUBPOENA                          10
 1   statements about SeeBeyond.” Complaint at ¶ 17. Yet the Complaint says nothing about the
 2
     statements allegedly made or the authors. The reader cannot tell whether there were any false
 3

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     statements of fact or merely nonactionable statements of opinion. Plaintiff states that

 5   “Defendants have knowingly made such statements, knowing that the statements were false.”
 6
     Id. ¶ 17. However, without saying what the statements are, this means nothing. Furthermore,
 7

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     Plaintiff offers no evidence at all to support that there was any actual malice. They merely

 9   added it to their conclusory pleading.
10
             Plaintiff also fails to properly allege tortious interference. To state a cause of action for
11

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     tortious interference, an intentional tort, Plaintiff must describe the underlying wrongful act itself.

13   See 5 Witkin, Summary 9th (1990) Torts, § 6, § 17, pp. 61 & 77. Plaintiff states only,
14
     “Defendants have intentionally and improperly interfered with SeeBeyond’s prospective
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     business relationship and economic advantage by engaging in wrongful actions.” Complaint at ¶

17   21. The Complaint does not state the nature of the “wrongful actions”. Moreover, Plaintiff
18
     must also describe how the underlying act interfered with SeeBeyond’s right to contract and
19

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     how SeeBeyond was harmed, including the nature of the harm. The Complaint should describe

21   the wrongdoing with sufficient particularity that defendant can assess and assert his or her
22
     defenses. Finally, once the underlying act and the interference caused have been stated, Plaintiff
23

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     must still describe how that interference was intentional. There is nothing to support that

25   conclusion beyond Plaintiff’s conclusory pleading that “Defendants…intentionally interfered.”
26
     Id. ¶ 21. For evidence, Plaintiff relies on information and belief.
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     MOTION TO QUASH SUBPOENA                          11
 1           Plaintiff fails to properly allege violation of 18 U.S.C. § 2701 and damages under
 2
     18 U.S.C. § 2707. To state a cause of action for violation of 18 U.S.C. § 2701, Plaintiff
 3

 4
     must allege that a specific facility was accessed, the nature of the access, including time and

 5   location, the specific communication at issue, including how it was affected by the alleged
 6
     access, how that access was intentional, how that access was unauthorized, and any
 7

 8
     identifying information linking any Movants to that access. See 18 U.S.C. § 2701(a).

 9   Rather than provide this information the Plaintiff merely states, “Upon information and belief,
10
     Defendants, in violation of 18 U.S.C. § 2701(a), intentionally accessed without
11

12
     authorization and/or intentionally exceeded their authorization to access, computer networks

13   and/or electronic mail systems.” Complaint at ¶ 9. Based on the information provided by
14
     Plaintiff, there is no reason to believe any violation occurred at all, never mind that it
15

16
     allegedly involved Movants. Furthermore, under 18 U.S.C. § 2707, Plaintiff must state

17   both actual damages and must show that the two-year statute of limitations has been met.
18
     See 18 U.S.C. § 2707(f). Neither showing is satisfied.
19

20           Plaintiff also fails to properly allege violation of 18 U.S.C. § 1030. To state a cause of
21
     action for violation of 18 U.S.C. § 1030, Plaintiff should identify which of the seven subsections
22
     under 18 U.S.C. § 1030 has been violated. Each subsection of 18 U.S.C. § 1030(a) has
23

24   different elements, each of which must be set forth fully in the Complaint. Plaintiff merely states,
25
     “Defendants intentionally accessed protected computer systems without authorization.”
26
     Complaint at ¶ 12. In addition to the specific elements of a subsection of 18 U.S.C. § 1030(a),
27

28   Plaintiff should describe the nature of the alleged access, including time and location, the nature
29




     MOTION TO QUASH SUBPOENA                          12
 1   of the protected systems, how the alleged access was intentional, how it was unauthorized, and
 2
     how it can be linked to any of the Does. Furthermore, once the violation itself has been
 3

 4
     described, Plaintiff should state the specific nature and degree of the harm caused by that

 5   violation resulting in damages under 18 U.S.C. § 1030(g). Additionally, as under 18 U.S.C. §
 6
     2707, a two-year statute of limitations must be met. See 18 U.S.C. § 1030(g).
 7

 8
             Fourth, Plaintiff has not explained why the requested discovery is necessary and limited

 9   to identifying the defendants. Plaintiff alleged that “defendants anonymously accessed and
10
     posted misleading and defamatory Messages.” Complaint at ¶ 5. Nowhere in the Complaint
11

12
     does Plaintiff link any specific messages to specific defendants, or any specific wrongs to the

13   identifying information requested. Plaintiff has not provided any reason to believe that the
14
     subpoena for Movants’ information is likely to yield information identifying the defendants.
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             Additionally, the subpoena used by Plaintiff is excessively broad and goes beyond the

17   purpose of identifying defendants. In addition to user-id and account information, the subpoena
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     requests any “documents relating in any way to the person or persons who posted the
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     messages.” See Exhibit D, Subpoena at 4. Yahoo! provides many services, including e-mail,

21   which fall under the language of this subpoena and have the potential to go far beyond
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     identifying the defendants. Each item requested under the subpoena must be specifically
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     justified and limited to avoid abuse of the discovery process and violation of Movants’ rights.

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                                        IV. CONCLUSION
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27           Plaintiff needs to demonstrate a compelling interest to destroy the right to speak
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     anonymously. Even if Plaintiff established some actionable claim against Movants, the Court
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     MOTION TO QUASH SUBPOENA                        13
 1   must weigh the strength and viability of that claim against Movants’ First Amendment right.
 2
     If the case is weak, discovery will provide little benefit, yet there will be irreparable harm to
 3

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     the speakers. Here, Plaintiff has not even provided information to support the conclusion

 5   that Movants did anything wrong at all. Since Plaintiff’s need is so uncompelling, this Court
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     should not abridge the fundamental right to speak anonymously.
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     Dated: February 25, 2003                           Respectfully submitted,
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12                                             By:       __________________________________
                                                        Jennifer Stisa Granick, Esq.
13
                                                        California Bar No. 164823
14                                                      STANFORD LAW SCHOOL
                                                        CENTER FOR INTERNET & SOCIETY
15
                                                        559 Nathan Abbott Way
16                                                      Stanford, CA 94305
                                                        Tel.: (650) 724-0014
17
                                                        Fax: (650) 723-4426
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                                                        ____________________________________
20                                                      Tim Pennington
                                                        Law Student on Brief
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22                                                      Attorneys for Movants aka “John Doe”
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     MOTION TO QUASH SUBPOENA                         14

				
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