From Judge John Koeltl’s (SDNY) decision today in Watson v. New York Do 1:
In January 2018, an anonymous post on an Instagram account accused plaintiff Ralph M. Watson of sexual misconduct. The plaintiff alleges that he was terminated from his position at the advertising agency Crispin, Porter & Bogusky (“CP+B”) as a result of this accusation. The Instagram account was operated by “Diet Madison Avenue” (“DMA”), an anonymous internet group whose stated goal is “to expose[e] Sexual harassment and discrimination in advertising agencies…
On May 22, 2018, Plaintiff filed suit in Superior Court in Los Angeles, California for defamation and related damages against DMA and its alleged individuals. In response to this action, an unidentified individual or individuals created a GoFundMe campaign to raise funds for the legal defense of DMA members, titled “Diet Madison Avenue Legal Defense.”
On January 17, 2019, plaintiff brought an action in this court against certain individuals, alleging defamation and other common law damages in connection with allegations of workplace sexual misconduct made against him. DMA Doe is not a defendant in this action. The DMA itself is also not a defendant in this action, although some of the defendants were or were alleged to be members of the DMA….
On January 8, 2021, the plaintiff issued a subpoena to GoFundMe. The subpoena sought to require GoFundMe to provide: “all information, including identifying information, of any person(s) who created a GoFundMe account” Diet Madison Avenue Legal Defense[,]’…including but not limited to… [n]The name(s) of all persons who created, maintained, and/or received funds from the account[.]”It also requested the addresses, email addresses, phone numbers and Internet Protocol addresses of these persons. DMA Doe claims that the information requested tends to reveal DMA Doe’s identity, whether or not DMA Doe played any role in creating any alleged dossier. Defamatory Postings. Plaintiff seeks to Using the identifying information that resulted from the GoFundMe subpoena to pursue his defamation claims in this court…
The Court concluded that the First Amendment prohibits enforcement of a subpoena:
The Supreme Court has recognized that the First Amendment protects anonymous speech. Accordingly, courts have found that a subpoena identifying the anonymous speaker raises First Amendment concerns. When deciding whether to quash a subpoena seeking information identifying an anonymous Internet user, courts evaluate whether the subpoena would violate an individual’s right to speak anonymously under the First Amendment. More specifically, courts in this circuit consider the five factors that have been developed Sony Music Entertainment Inc. Vs. Is 1-40 (SDNY 2004), adopted by the Second Circuit Court of Appeals in Arista Recs., LLC v. Doe 3:
(1) The realism of the plaintiff’s presentation of a prima facie claim of actionable harm, … (2) The specificity of the discovery request, … (3) The lack of alternative means of obtaining the requested information, … (4) The need to obtain the information required to provide The claim,…and (5) the objecting party’s expectation of privacy….
First, the plaintiff argues that it has made “a concrete demonstration of a prima facie claim of actionable harm.”[.]”…Plaintiff’s objections point to two potential claims that may be suggested by the information presented in the subpoena. The first is a conspiracy allegation, but this court has already rejected the conspiracy claims made by Plaintiff against all defendants in this case. However, in his objection, Plaintiff attempts to raise Conspiracy suit again.
Because the court found that the false allegations of rape by NY Doe 2 would be defamatory per se, the plaintiff argues, the claims against DMA Doe would also be enforceable. However, there are no plausible allegations as to why the person involved in establishing or receiving funds from the GoFundMe account would be a conspirator with NY Doe 2. In fact, the specific defamatory statements that NY Doe 2 is alleged to have made on the GoFundMe website have not been made. Accordingly, this first allegation by Plaintiff is not a “concrete demonstration of a prima facie claim of actionable harm.”
Plaintiff also failed to raise a specific defamation claim that could be disclosed through the subpoena. In fact, any new claim of defamation would be barred by New York’s one-year statute of limitations for defamation and slander claims. The subpoena, in short, is a classic “fishing expedition” in constitutionally protected waters…
Plaintiff also asserts that his discovery request was sufficiently specific…. The court is in Sony It held that a subpoena is “sufficiently specific” when there is “a reasonable possibility that the discovery request will yield identifying information that would make service possible on specific defendants who could be sued in federal court.”
In this case, the plaintiff claims that the subpoena will reveal identifying information that will allow him to serve the individuals who allegedly defamed him, or at the very least, a material witness who can provide that information. The plaintiff argues that DMA Doe is an insider, with actual personal knowledge of the group’s posts.
However, this is just speculation. As Judge Freeman noted during the motion hearing, assuming that DMA Doe was “a person who logged into a DMA account” and “was involved in setting up the GoFundMe page,” there was no reason to conclude “that DMA Doe engaged in conduct that was directly related of the allegations in this case.” The subpoena seeks to identify all people who created, maintained, or received money from a GoFundMe account, regardless of whether those people had anything to do with the alleged defamatory statement. Therefore, the plaintiff’s subpoena is very broad….
While the plaintiff claims that he has proven that there are no other means of discovering the information requested pursuant to the third Sony Factor, this is not true…. [T]Below are clear alternative sources, including follow-up discovery from the individual defendants he identifies….
The plaintiff also argues that he has demonstrated compliance with the fourth condition Sony factor by showing that the only means of presenting his remaining claims was through the information requested in the subpoena. But this is not true either. Plaintiff is pursuing claims in this court against Illinois Doe 1 and NY Doe 2, and has failed to present any reasonable argument that he has a claim against DMA Doe or any other potential defendant.
Thus, the plaintiff has failed to fulfill his burden under the fourth part of the article Sony Exam.
Finally, Plaintiff asserts that it refutes DMA Doe’s proof that DMA Doe had a reasonable expectation of privacy with respect to the personal information requested, according to V Sony Factor. Plaintiff argues that DMA Doe does not have a First Amendment right to protection from defamatory statements. But there is no indication that DMA Doe made any defamatory statements about the plaintiff.
in Sony, the court found that the defendants whose discovery was sought had a “minimum expectation of privacy” because they used the subpoenaed entity — Internet service provider Cablevision — to download copyrighted songs without permission in violation of the terms of Cablevision’s user agreement. The facts of this case are completely different. The plaintiff does not allege that DMA Doe made defamatory statements on the GoFundMe. Instead, the plaintiff alleges that DMA Doe may have made defamatory statements on Instagram, but there is no evidence to support even that speculation….