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John Doe

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

AMY J. ROLOFF and MATTHEW J. ROLOFF Plaintiffs,

Case No. 10-cv-1487-MO

MOTION TO QUASH SUBPOENA vs. WASHINGTON COUNTY, a political subdivision of the State of Oregon, JOHN WHEELER and JAY WINCHESTER, Defendants.

TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that as soon thereafter as the matter may be heard in the above-titled Court, Third Party John Doe will move to quash a subpoena issued by the Plaintiffs in this action. This is a motion to quash a subpoena issued by Plaintiffs, Amy J. Roloff and Matthew J. Roloff (The Roloffs) for the disclosure of the name, and identifying information of John Doe (also known as Spiritswander) and the identifying information of any and all people authoring or contributing written material to Spiritswander.blogspot.com (The Blog) since the inception of The Blogs creation. The subpoena was served upon Google Inc (Google) on December 7, 2011. John Doe is requesting this Honorable Court to quash said subpoena or, in the alternative, issue a protective order prohibiting Google from revealing the name, identifying information, or location of John Doe or any person

authorized to author, edit, or otherwise contribute written material to the Blog. This motion should be granted because (1) the Roloffs have failed to show that their need for the information requested outweighs the anonymous speakers First Amendment Rights; (2) the constitutional protections of freedom of association outweighs the Roloffs need to be granted access to the name, identifying information and location of John Doe and all persons who were authorized to author, edit or contribute to the Blog; (3) The Roloffs have failed to establish in their pleadings that they have a good faith basis that they may be a victim of conduct actionable in this jurisdiction against John Doe Defendant; and (4) Plaintiff has failed to establish that the identity of John Doe or that of any persons authorized to contribute to the Blog is centrally needed to advance their claims.
MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION

On Dec 6, 2010, Plaintiffs Amy J. Roloff and Matt J. Roloff filed a lawsuit against a defendants Washington County, a political subdivision of the State of Oregon, John Weelher and Jay Winchester. Third Party John Doe was not and is not a defendant in this action. John Doe maintains an online entertainment blog devoted to the television show "Little People Big World," and as the incident that prompted the present lawsuit appeared on the television show, John Doe made several blog entries about the event, including links to news articles about the lawsuit. John Doe does not have any direct association with the Roloffs or the defendants in this action.
I. Google Subpoena

On December 7, 2011, Plaintiffs issued a subpoena to Google whose principal place of business in Mountain View, California with a compliance date of January 9th, 2012. The subpoena requested any identifying information of the person or persona who established the blog at http://spiritswander.blogspot.com, the Blogger User Profile associated with the Blog, any identifying information of any person who was authorized to author, edit or otherwise contribute written material to the Blog since the inception of the Blog, and the name of the registered owner of the email address spiritswander@gmail.com. The subpoena

does not explain the relevance of the requested information or relation to the claims made in the lawsuit. Google received the subpoena and on December 8, 2011 gave notice to me, its customer, that it would be releasing the requested information unless it received a formal objection by December 28, 2011. On December 9, 2011, Google emailed me a copy of the subpoena. The Plaintiffs never contacted me to give me any sort of notice that they were serving a subpoena to get information about my email address and my blog. (Declaration of John Doe in Support of Motion to Quash, 5-6.)
II. Blog referenced by Plaintiff

The blog referenced in Plaintiffs request is a well known informational source for the television show Little People Big World and the Roloff family. Blog entries are reviews of episodes, links to news articles, interviews with friends associated with the family, and discussions of the online public postings of the family. Each day, many individuals post messages and comments on the blog entries, commenting on the events, their own experiences with the Roloffs and their own opinions. The blog is a marketplace of ideas for discussion, deserving First Amendment protection. John Do has no personal connection or contact with any of the defendants in this action (Washington County, John Wheeler and Jay Winchester). None of the defendants in this action has anything to do with John Doe or John Does blog in any way. John Doe has never met or spoken to any of the defendants. (Declaration of John Doe in Support of Motion to Quash, 7.)
STANDARD OF REVIEW

Presumably, Plaintiffs seek information about the identity of John Doe and all participants on the Blog because of certain blog entries that discussed the lawsuit against the defendants in this action. In Dendrite International, Inc v. John Doe, N0. 3,342 N.J Super 134, 775 A.2d 756 (App. Div. 200), the court explained the relationship that a customer has with his Internet Service provider (i.e. Yahoo!) by stating 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 761. As the court recognized, 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. Id. at 762. Similarly, the U.S. Supreme Court in McIntyre v. Ohio Elections Comm., 514 U.S 334 (1995) stated that there is a First Amendment right to speak anonymously. Plaintiff has made no showing to justify destroying this right of these internet users. Without sufficient allegations or evidence to establish a prima facie case, the First Amendment demands that the John Doe's right to speak anonymously be preserved. People 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 courts order to discover their identities. Columbia Ins. Co. V Seescandy.com, 185 F.R.D. 573, 578 (N.D. Cal. 1999). ARGUMENT John Doe and all participants on the Blog would lose their fundamental right to speak anonymously if this subpoena is enforced. Yet, Plaintiff has issued the subpoena with nothing more than a conclusory pleading that fails to set forth legitimate claims against John Doe and participants of the Blog much less provide factual support for these claims. The Court should require the Plaintiff to demonstrate legitimate claims against John Doe and the participants of the Blog so that the Court can balance Plaintiffs need for the requested information against John Doe and the participants of the Blogs First Amendment right to anonymous speech. A. John Doe has a First Amendment Right to Speak Anonymously Plaintiffs seek to enforce a subpoena demanding information that would destroy John Does right to speak anonymously. In this case, Plaintiffs can demonstrate no compelling interest why that First Amendment right should be breached. The Blog is a public discussion area for the television show Little People Big World and John Doe has no direct contact or knowledge of the events leading to the Roloffs lawsuit against defendants in this action. The blog discussion was in regard to the events depicted on the television show and public news articles describing the Roloffs intent to sue. The Supreme Court has held that the right to speak anonymously is protected under the First Amendment and has recognized the important historical role of anonymous writings, including the literature of Mark Twain and the advocacy of the Federalist

Papers. Buckley v. Am. Constitutional Law Found., 525 U.S. 182 (1999); McIntyre v. Ohio Elections Comm., 514 U.S. 334 (1995); Talley v. California, 362 U.S. 60 (1960). As the Court noted in Talley, [The Federalist Papers, written in favor of the adoption of our Constitution, were published under fictitious names. It is plain that anonymity has sometimes been assumed for the most constructive purposes. Id. at 65. The Court expanded on this in McIntyre, stating The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism. John Doe and the participants of the Blog are fans of the show discussing new articles, and are not named defendants in the Plaintiffs case. Rather than pursuing a demonstrable cause of action, Plaintiffs have served a subpoena to obtain the identity of John Doe, despite the fact that the operable complaint is not in any way related to the Blog or any actions of John Doe. Without any established connection between their claims and the anonymous usernames, Plaintiff has subpoenaed Google to provide John Doe's personal and private account information, and the personal and private account information of anyone who has authored a comment on the Blog. Compelling this disclosure violates John Doe's First Amendment right to speak anonymously. Thus, John Doe respectfully requests that this Court quash the subpoena. A court order to compel production of individuals identities is subject to the closest scrutiny when it impinges on fundamental rights. NAACP v. Alabama, 357 U.S. 449, 461 (1958); Bates v. City of Little Rock, 361 U.S. 516, 524 (1960). Furthermore, the abridgement of the rights to speech and press, even though unintended, may inevitably follow from varied forms of governmental action, such as the production of names. NAACP, 357 U.S. at 461. Due process requires the showing of a subordinating interest which is compelling where disclosure threatens to significantly impair fundamental rights. Bates, 361 U.S. a 524: NAACP, 357 U.S. at 463. 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 enforces 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. 2The Mart.com Inc., 140 F. Supp. 2d 1088, 1093 (W.D. Wash. 2001). In holding that a corporations need was not compelling enough to warrant

disclosure when compared to the First Amendment right of an anonymous poster, the court in 2Themart.com stated, discovery requests seeking to identify anonymous Internet users must be subjected to careful scrutiny by the courts. Id. at 1093. Recent cases have required plaintiffs to demonstrate a compelling need for anonymous Internet users private information. In Columbia Ins. v. Seescandv.com, 185 F.R.D. (N.D. Cal. 1999), the plaintiffs sued several defendants based on the registration of Internet domains that used the plaintiffs trademark. Summarizing the chilling effects of discovery, the court noted, [people 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 courts order to discover their identify. Id. at 578. Interpreting Seescandy.com in a case that involved anonymous speech on a Yahoo! Bulletin board, the court in Dendrite international, Inc. v. John Doe, No. 3342 N. J. Super 134 775 a.2d 756(App. Div. 2001), focused on what the plaintiff must do to demonstrate that its need for the information is strong enough to justify discovery. The Dendrite court interpreted Seescandy.com as establishing a flexible, non-technical, fact sensitive mechanism for courts to use as a means of ensuring that plaintiffs do not use discovery procedures to ascertain the identities of unknown defendants in order to harass, intimidate or silence critics in the public forum opportunities present by the Internet. Id. at 770. Rejecting the notion that plaintiffs need only be able to survive a motion to dismiss, the Dendrite court specifically focused on probable cause as mentioned in the third prong of the Seescandy.com test, concluding that by equating this prong to the probable cause for warrants. plaintiffs must make some showing that an act giving rise to civil liability actually occurred and that the discovery is aimed at revealing the specific identifying features of the person or entity who committed the act. Id. at 770 (quoting Seescandy.com, 185 F.R.D. at 580) (emphasis of Dendrite court). Such a showing is required to demonstrate a subordinating interest which is compelling under Bates. 361 U.S. at 524. Plaintiffs have not explained why the requested discovery is necessary. Nowhere in the Complaint do Plaintiffs link any specific wrongs to the identifying information requested or any relevancy at all to the case of Amy J. Roloff and Matthew J. Roloff versus the defendants in the action. Plaintiffs have not provided any reason to believe that the subpoena for

CERTIFICATE OF SERVICE I hereby certify that on December 22, 2011, I served the foregoing by U.S. Mail to the following attorneys of record: Attorneys for Plaintiffs: Donald Joe Willis Schwabe Williamson & Wyatt, PC 1600-1900 Pacwest Center 1211 SW Fifth Avenue Portland, OR 97204 (541) 749-4012 Fax: (541) 330-1153 Email: jwillis@schwabe.com Attorneys for Defendants: Christopher A. Gilmore Office of Washington County Counsel 340 Public Services Bldg., MS 24 155 N. First Avenue Hillsboro, OR 97124-3072 (503) 846-8747 Fax: (503) 846-8636 Email: chris_gilmore@co.washington.or.us Ross A Day Day Law Group, P.C. 12755 SW 69th Ave Suite 200 Portland, OR 97223 503-747-2705 Fax: 503-747-2951 Email: ross@daylawpc.com

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