Sinclair v. TubeSockTedD, mzmolly and OWNINGLIARS,
Sinclair, a Minnesota man whose a You-Tube video and blog claiming to have done drugs and had sex with presidential candidate Barack Obama was roundly criticized by many anonymous Internet users, filed a defamation in the United States District Court for the District of Columbia against three of his critics for defamation, and obtained leave to use discovery to identify the Does. Representing one of the Does, as well as the ISP on whose web site that Doe posted, we objected to the subpoena, and have filed an opposition to the ensuing motion for to compel. We argue that there is no diversity jurisdiction to sue Doe defendants, and no personal jurisdiction in DC. We also argue that Sinclair has not pleaded a proper defamation claim and that, in any event, he has not presented any evidence in support of his claim as required to meet the well-established standard to obtain identifying information. In response to Sinclair’s argument that Doe’s counsel could be compelled to identify their own client, Doe argued that the information was protected from disclosure not only by the First Amendment, but also by the attorney-client privilege. Even though the identity of the client is ordinarily not privileged, Doe argued that when the purpose of the representation is to protect the client from identification, identifying information is necessarily within the privilege.
The trial court ruled that Sinclair had not shown a basis for diversity jurisdiction (because the defendants were all anonymous) or for personal jurisdiction (because he did not live in DC, and did not plead that any of the defendants lived there either), and because he did not meet the standard for identifying anonymous speakers who are sued for defamation because, regardless of whether evidence is needed, Sinclair pleaded neither special damages nor actual malice. The Court noted in passing that the demand that counsel identify their client was frivolous because, in part, it “ignores the attorney-client privilege.”