MOTION TO QUASH DISCOVERY - CyberSLAPP

1 L !r Cause No. 07-07934-H. ,"j ' ~i'.. r "" 'r ". IN RE: PETITION OF , IN THE DISTRICT cotntTi t~., .. ", ~ r f Requesting a Deposition of Corporate . 'r ~-~ . Representative for Google, Inc., OF DALLAS COUNTY, TEXAS:! . 160TH JUDiCiAL DISTRICT. MOTION TO QUASH DISCOVERY . AND FOR PROTECTIVE ORDER. TO THE HONORABLE JUDGE OF THIS COURT: Movant "Doe" is a person affected by written DISCOVERY issued in this matter who hereby specially appears for the sole purpose of moving to QUASH that DISCOVERY and for a protective order under Rules , & (b)(2), TEX. R. CIV. P., and would respectfully show as follows: I. BACKGROUND FACTS AND SUMMAY. On August 2,2007, a two-page Rule 202 petition was filed in this cause under the initials " " Exhibit 1, attached. Petitioner alleges she is using initials, rather than her name, in order to protect her privacy. d. at 1. The Petition sought to take the deposition of a corporate representative for Google, Inc.

2 , to discover "the names and addresses of entities and/or individuals who are hosting and posting derogatory statements concernng on blogs1 hosted by Google." Exhbit 1 at 2. The Petition states no further facts. It does not identify the Google b1ogs. It does not identify the 1 "Blog" is short for "web log," "a website where entries are written in chronological order and commonly displayed in reverse chronological order." See Many blogs provide commentar or news on a paricular subject; others function as more personal online diares. A typical blog combines text, images, and links to other blogs, web pages, and other media related to its topic. The abilty for readers to leave comments in an interactive format is an important par of many blogs. d. allegedly "derogatory" statements. It does not allege any facts showing that any of the unidentified derogatory statements are actionable libel, rather than constitutionally-protected speech.

3 Exhibit 1 at 1-2. On information and belief, made no effort to notify any person hosting or posting on any Google blog of her Rule 202 Petition, such as posting to the blog itself or otherwise. On September 21, 2007, the Court issued an order authorizing to "serve DISCOVERY on Goog1e seeking all information in Google's possession, custody, or control concernng the identity of the entities and/or individuals responsible for posting derogatory statements regarding on blogs hosted by Google and those responsible for such blogs." Exhibit 2, attached. The Order did not identify any Google blogs or any allegedly derogatory statements, and it did not make any findings that any Google blog contained any actionable libel of d. On information and belief, made no effort to notify any person hosting or posting on any Google blog of the issuance of this Order. Although 's Petition sought a deposition, on September 27, 2007, 's counsel served Google with wrtten interrogatories and requests for production.

4 Exhbits 3 and 4, attached. This written DISCOVERY sought information and documents that "identifies, or that could help to identify" the person (1) who created the account and Google blog located at ; (2) who posted a blog comment "MP must be stopped!"; (3). who posted responses to that comment; and (4) who used a link on the blog to access the Del Mar Countr Club's homepage. Id. Upon receipt of the DISCOVERY , Google gave notice via email to the person who created the Google blog at issue. Movant is the individual who created the Google account and blog at issue. The blog permits persons who visit the site to add their own comments anonymously or pseudonymously. MOTION TO QUASH - PAGE 2. Movant created the blog using a pseudonym in order to protect Movant's privacy and to avoid threats and retaliation by persons who may disagree with the opinions expressed on the blog. ' s anonymous Petition seeks, ironically, to reveal the identity of anonymous persons.

5 Her DISCOVERY on Google should be quashed. First, did not meet Rule 202's requirements. did not provide the notice and service required by Rule (a) & (b). Moreover, Rule 202's plain text only authorizes taking a deposition to preserve testimony, not serving written interrogatories and requests for production. Second, Movant has a well-established First Amendment right to speak anonymously. This right can be overcome only by a substantial showing of a cognizable legal claim and a heightened need for the information sought. 's Rule 202 petition wholly failed to meet the burden necessary to overcome this fudamental constitutional right. Movant is affected by the DISCOVERY served on Google and therefore has standing to seek an order quashing any DISCOVERY calculated to revealing Movant's identity. TEX. R. CIV. P. (a); (b)(2). Movant asks ths cour to QUASH the DISCOVERY and enter a protective order precluding any compulsory DISCOVERY in this matter that identifies, or could help identity, Movant's identity.

6 II. 's PETITION DID NOT COMPLY WITH RULE 202. Rule 202 required that , at least 15 days before the date of the hearng on the petition, serve the Petition and notice of the hearng on all persons she sought to depose "and, if suit is anticipated, on all persons petitioner expects to have interests adverse to petitioner's in the anticipated suit." TEX. R. CIV. P. (a). The Rule permits service either according to Rule 21, TEX. R. CIV. P., or by publication on "(u)nnamed persons described in the petition whom the MOTION TO QUASH - PAGE 3. petitioner expects to have interests adverse to petitioner's in the anticipated " TEx. R. Civ. P. (b)(1). 's Petition clearly anticipates adverse interests: it seeks DISCOVERY in order to send cease-and-desist demands "and/or for to potentially file claims against the responsible individuals and/or entities." Exhibit 1 at 2. The record does not establish that complied with any of these requirements: she did not personally serve Movant or serve Movant by publication, nor did she make any other practical effort (such as the simple and effective means of posting to the blog at issue) to notify Movant that she was seeking DISCOVERY from Google that would reveal Movant's identity.

7 Moreover, Rule 202's plain language only permits "an order authorizing the takng of a deposition on oral examination or written questions." TEX. R. CIV. P. The Rule does not permit the service of interrogatories or requests for production. "Neither by its language nor by implication can we construe Rule 202 to authorize a tral cour, before suit is filed, to order any form of DISCOVERY but deposition." n re Akzo Nobel Chem., 24 919, 921 (Tex. App. - Beaumont 2000, orig. proceeding). 's s rvice of interrogatories and requests for production on Google are therefore without legal authorization. Because did not comply with Rule 202's notice provisions, and because Rule 202. does not authorize service of interrogatories and requests for production, the wrtten DISCOVERY served on Google should be quashed and a protective order entered. III. THE FIRST AMNDMENT PROTECTS MOVANT DOE'S IDENTITY. A. The First Amendment Protects Anonymous Speech.

8 Since the founding of our nation, anonymous speech has been a respected tradition. The Federalist Papers were written by founding fathers Alexander Hamlton, James Madison and MOTION TO QUASH - PAGE 4. John Jay, but were published pseudonymously under the name "Publius." The Supreme Court has long held that the First Amendment protects not just the right to speak, but also the right to speak anonymously. Watchtower Bible and Tract So. of New Yorkv. Vilage of Stratton, 536 150, 166-67 (2002); Buckley v. American Constitutional Law Found., 525 182, 199-200 (1999); McIntyre v. Ohio Elections Comm., 514 334,341-42,356 (1995). See also Doe v. State, 112 532, 535 (Tex. Crim. App. 2003) ("Freedom of speech includes the right to engage in the dissemination of ideas without being publicly identified."). As the Supreme Court has explained, despite "readers' curiosity" and "the public's interest" in an author's identity, an author is generally free to decide whether or not to disclose his or her tre identity.

9 The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible. Accordingly, an author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment. McIntyre, 514 at 341-42. First Amendment rights apply to speech on the Internet just as fully as other media. The Supreme Court has made clear that there is "no basis for qualifyng the level of First Amendment scrutiny that should be applied" to speech on the Internet. Reno v. ACLU, 521 844, 870. (1997). This protection extends to anonymous speech. "(T)he constitutional rights of Internet users, including the First Amendment right to speak anonymously, must be carefully safeguarded." Doe v. Inc., 140 F.

10 1088, 1097 ( Wash. 2001). Accord, Doe v. Cahil, 884 451, 33 Media Law Rep. 2441, 2443 (DeL. 2005) (First Amendment protection "extends to anonymous internet speech"). People are permitted to interact pseudonymously and anonymously with each other so long as those acts are not in violation of the law. This ability to speak one's mind without the burden of the other party knowing all the facts about one's identity can foster MOTION TO QUASH - PAGE 5. open communication and robust debate.. People who have committed no wrong should be able to participate online without fear that someone who wishes to harass or embarass them can file a frvolous lawsuit and thereby gain the power of the court's order to discover their identities. Columbia Insurance Co. v. , 185 573, 578 ( Cal. 1999). The constitutional right to speak anonymously is not absolute, but as numerous courts have held, the First Amendment does require the Court to act as a careful gatekeeper to ensure that judicial process is not used to compel the disclosure of a speaker's identity, without proof of a viable claim and proof that the information sought is necessary to pursue that claim.