The Discovery of Electronically Stored Information has many surprises, ranging from stating the form of production, the inadvertent production of privileged material and defensible search terms. A very surprised lawyer fought a First Amendment objection they probably did not see coming during a deposition.
In Quixtar Inc. v. Signature Mgmt. Team, LLC, 2008 U.S. Dist. LEXIS 56593 (D. Nev. July 7, 2008), the Plaintiff claimed the Defendant launched an internet campaign to induce the Plaintiff’s employees to defect to Defendant’s company. The Plaintiff claimed the Defendant launched multiple websites and blogs directed the Plaintiff’s at sales people to leave the company.
During deposition, a defense witness was questioned on his company’s blogs. Plaintiff‘s counsel inquired whether there were other blogs that the witness had set up and maintained. The witness responded “yes” and Defense counsel instructed the witness not to answer any questions regarding websites in a separate lawsuit on the basis of the First Amendment privilege.
Defense counsel claimed the First Amendment privileged applied to the witness’s involvement or non-involvement in setting up other websites, video postings, and whether the witness posted under a pseudonym.
What followed was a very detailed discussion on First Amendment Rights and Anonymous Posting on the Internet vs. State Tort Law. The analysis heavily focused on First Amendment rights, balancing tests for identifying anonymous parties and standing requirements to bring third party objections.
The principle of anonymous speech dates back to such examples as Alexander Hamilton, John Jay and James Madison in the Federalist Papers or then Vice President Thomas Jefferson and James Madison (again) secretly attacking the Alien & Sedition Acts in the Kentucky and Virginia Resolutions. The United States Supreme Court has protected this right, stating that, “Anonymity is a shield from the tyranny of the majority,” McIntyre v. Ohio Elections Comm‘n, 514 U.S. 334, 357, (1995). Additionally, the right to speak anonymously extends to the Internet. Doe v. 2TheMart.Com, Inc., 140 F. Supp. 2d 1088, 1092 (W.D.Wash 2001).
The District Court found that the Defendant did not have to answer deposition questions on blogs until anonymous third parties had an opportunity to contest the discovery of their identities under pseudonyms and show they had legal standing to raise their objections.
To say the intersection of the First Amendment, Anonymous Posting and e-Discovery is complex is an understatement. With the relative ease a website or blog can be created, lawyers should consider if their clients have any First Amendment issues warranting protection. Conversely, no one wants to inadvertently stumble into one of these disputes in a deposition without understanding the issues.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016 and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.