RESPONSE TO MOTION TO COMPEL
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Once a subpoena has been issued, step #1 in this process requires the plaintiff togive notice to the author informing him/her of the attempt to discovery their identity. Inthis case, Plaintiffhas complied with the notice requirement,so only the second and thirdstepsare relevant.The second and third steps of the process are much more substantive than the first.In sum, the secondstep requires the plaintiff to demonstrate that it could survive ahypothetical Motion for Summary Judgment filed by the anonymous defendant.
, 217 Ariz. at 111 (holding, “We therefore adopt the second step from[
, 884 A.2d 451 (Del. 2005)]that requires the requesting party to demonstrate itwould survive a motion for summary judgment filed by Doe on all of the elements withinthe requesting party’s control—in other words, all elements not dependent upon knowingthe identity of the anonymous speaker. Requiring the requesting party to satisfy this stepfurthers the goal of compelling identification of anonymous internet speakers only as ameans to redress legitimate misuses of speech rather than as a means to retaliate against or chill legitimate uses of speech.”)If the plaintiff cannot makethis showing, then the inquiry ends and the request toreveal the author’s identity must be denied. On theother hand, if the plaintiff
showthat it would survive summary judgment, then the court mustproceed to the third stepwhich is essentially an equitable “balancing test”.
, 217 Ariz. at 111–12.This flexible test focuses on various questions such as:
Does the plaintiff really need to know the anonymous speaker’s identity or are there other known witnesses with the same information?
Has the plaintiff exhausted other means of learning the author’s identity?
Are there any other equitable considerations for denying the plaintiff’srequest?As to the last point,
directs courts to consider “the type of speechinvolved, the speaker’s expectation of privacy, the potential consequence of a discoveryorder to the speaker and others similarly situated, the need for the identity of the speaker