Two recent back-to-back decisions involving the same plaintiff and the same magistrate in the United States Northern District of California illustrate when a court would—and would not—likely grant a request to unmask an anonymous poster pursuant to 28 U.S.C. § 1782. In re Yasuda, No. 19-MC-80127-TSH, 2019 WL 4933581 (N.D. Cal. Oct. 7, 2019) (Yasuda I) and In re Yasuda, No. 19-MC-80156-TSH, 2019 WL 7020211 (N.D. Cal. Dec. 20, 2019) (Yasuda II).
Both cases involved a Japanese doctor who filed civil suits in Japan for defamation against anonymous Twitter users. One user, “@ZZu9ro,” posted tweets in Japanese, alleging Dr. Yasuda had an “unprofessional physical relationship with a female patient at ‘Yu Mental Clinic’ that led to her attempted suicide.” The tweet was posted on the Twitter page of a well-known Japanese radio DJ who has over 10,000 followers. In the second case, Twitter user “@gefalleneren” tweeted a picture of Dr. Yasuda and an unidentified woman accompanied by Japanese text stating, “Yuuki Yu (Yuchiro Yasuda) was sued by a woman who was a former associate. It does not [sic] been clearly said that Yuuki Yu is sexually exploiting and the sexual toys of the charismatic psychiatrist are mass produced…” A second tweet stated, “The issue in which article links of [sic] Yuuki Yu’s women issues and sexual relationships are being regulated.” Both posts were followed by a string of hashtags, including “#Defamation, #managed prostitution, #sex crime, #extortion, #engagement scam, #incapacitated rape.”
After identifying the URL of both anonymous users and obtaining the IP addresses and specific dates of the tweets, Dr. Yasuda filed an ex parte application pursuant to 28 U.S.C. § 1782, for an order requiring Twitter to turn over identifying information for the anonymous users involved in the Japanese civil suit. Section 1782 gives the court wide discretion to order production of discovery for use in a foreign proceeding. This section requires (1) the person or entity from whom the discovery is sought “resides in or is found” in the district in which the application is made; (2) the discovery is for use in a foreign case and (3) the application is made by “any interested person.” Having found the three requirements were met, the court granted the application, and in turn, Dr. Yasuda issued two subpoenas to Twitter for identifying information pertaining to “@ZZu9ro” and “@gefalleneren.” In response to the subpoenas, Twitter filed motions to quash.
The Court’s Analysis and Ruling in Yasuda I
The court’s decision to deny or grant the first motion to quash turned upon four factors set out in In re Ex Parte Application of Jommi, N.D. Cal., Nov. 15, 2013, No. C 13-80212 CRB (EDL)) 2013 WL 6058201. This is the test the Northern District has applied to determine whether unmasking an anonymous poster is appropriate, despite the potential chilling effect on speech and First Amendment concerns. The Jommi test requires that the applicant:
- Identify the party with enough specificity so the court can determine the party is a real person subject to the suit;
- Identify all prior steps taken by the applicant to locate and identify the party;
- Demonstrate that the action can withstand a motion to dismiss; and
- Prove that the discovery requested is likely to lead to identifying information.
In Yasuda I, the court found Dr. Yasuda satisfied the Jommi requirements. First, the court concluded that he demonstrated the user “@ZZu9ro” is a real party to the suit, as the URL address, IP address, and specific dates of the posts were identified. Second, the Court determined that Dr. Yasuda adequately detailed the steps taken to identify the unknown defendant, which revealed that Twitter hosted the server the poster had used. Third, the Court found that Dr. Yasuda successfully proved the claim of defamation against the anonymous user could survive a motion to dismiss, since the posts at issue falsely accused Dr. Yasuda of a crime. Specifically, the Court decided that the post asserted Yasuda breached his duty as a doctor by engaging in a sexual relationship with a patient. Furthermore, the Court found, Dr. Yasuda demonstrated the discovery requested would likely lead to information that would identify the author of the tweets and that it was relevant to Dr. Yasuda’s defamation claim. Indeed, the court emphasized the fact that the request for information was narrowly tailored and was not overly intrusive as it sought only identifying information, and not the actual content of any communication. Finding that the request for information listed in the subpoena satisfied the Jommi test, the court denied Twitter’s motion to quash in Yasuda I.
The Court’s Analysis and Ruling in Yasuda II
Once again the Court applied the Jommi factors to determine whether unmasking an anonymous poster was appropriate. Twitter argued that the tweets were not clear allegations levelled at Dr. Yasuda. Moreover, even though the various hashtags arguably related to sexual misconduct, it was not clear the hashtags were meant to accuse Dr. Yasuda of any crime. In other words, it was not apparent that the hashtags were of and concerning Dr. Yasuda, or that they were assertions of objective fact.
Notably, the court found that even if Yasuda were able to show the claim would survive a motion to dismiss, the court would then need to apply a balancing test to determine if unmasking the identity of the anonymous defendant was appropriate. This two-part balancing test, adopted in Highfields Capital Mgmt., L.P. v. Doe, requires the court to “go beyond the pleadings” in order to determine if any evidence has been provided to prove actual harm outweighs the chilling effects of unmasking an anonymous poster. The Highfields test asks first if there is a “real evidentiary basis” for believing the anonymous poster actually engaged in wrongful conduct. Highfields Capital Mgmt., L.P. v. Doe(N.D.Cal. 2005) 385 F.Supp.2d 969 at 975. If, and only if, the plaintiff produces competent evidence exists to satisfy the first component of the test, the court must then assess the magnitude of the potential harm to defendant’s First Amendment privacy right if the court were to rule in plaintiff’s favor. Id. If the harm is relatively small, a court would likely deny a request for identifying information and choose to protect the anonymous defendant’s First Amendment rights.
Here, Twitter asserted that Dr. Yasuda failed to provide any such evidence, and the court agreed. Twitter’s second motion to quash was granted because the second poster did not clearly accuse Dr. Yasuda of any crime. The multiple hashtags did not seem to be aimed at Dr. Yasuda himself; instead, they appeared merely to be words tacked onto the end of a post. The court found these tweets were more of a rant than anything that could be considered per se defamatory. Even if this were not the case, unmasking would still not be appropriate because Yasuda did not provide any evidence of actual harm.
Further, the court found the request for identifying information to be unduly burdensome. Enforcing the subpoena in Yasuda II would exact too high of a price. Stripping the anonymous defendant of their right to express their personal views, along with public exposure of their identity, was too high when considering the importance of a defendant’s right to express his or herself anonymously.
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