A defendant in a copyright infringement action pending in New York state court subpoenaed a California journalist seeking information to identify the author of two anonymous comments posted to a story on the journalist’s blog, claiming that employees of the defendant are given quotas of music to upload and, with the knowledge of their supervisors, meet those quotas by uploading copyrighted sound recordings. Opposing a motion to compel compliance with the subpoena, we represent the journalist in arguing that, because the journalist does not retain identifying information for more than a few days and because he discarded the identifying information in the ordinary course of business before the subpoena was issued, the subpoena is moot. In any event, we argue, the defendant has not met the stringent First Amendment standards for taking away the right of the commenters to speak anonymously, and that, on the unusual facts of the case the anonymous commenters are the journalist’s sources, California’s shield law also precludes enforcement of the subpoena. The trial court enforced the subpoena and then ordered the journalist to undertake complex and expensive data preservation procedures so that a forensic inspection could be completed to determine whether any of the deleted identifying information could be recovered from the journalist’s servers.
We now represent the journalist on appeal. The Court of Appeal granted a stay pending appeal on a writ of supersedeas. We argue that there is no basis for a forensic inspection and, therefore, for data preservation absent a showing that information was improperly discarded and that a forensic inspection is likely to be fruitful. We also argue that, in any event, the First Amendment requirements for identifying the anonymous commenter have not been met.