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 represented 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 was moot. In any event, we argued that the defendant had not met the stringent First Amendment standard for taking away the right of the commenters to speak anonymously. 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.
On appeal, we argued that there was no basis for a forensic inspection and, therefore, for data preservation absent a showing that information was improperly discarded and that a forensic inspection was likely to be fruitful. We also argued that, in any event, the First Amendment requirements for identifying the anonymous commenter had not been met. The court of appeal reversed on the grounds that the discovery sought by Escape Music Group was not relevant to the issues in the New York state court lawsuit and that, in any event, California’s constitutional right of privacy protects the right of the commenter to remain anonymous.